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Volume 01, Number 1 Fall 2001

APA Newsletters

© 2002 by The American Philosophical Association ISSN: 1067-9464

NEWSLETTER ON PHILOSOPHY AND LAW

FROM THE EDITOR, THEODORE BENDITT

ARTICLES

BRIAN H. BIX

“An Outsider’s Guide to Natural Law Theory”

ROBERT P. GEORGE

“Reason, Freedom, and the Rule of Law: Their Significancein the Natural Law Tradition”

DAVID NOVAK

“Judaism and Natural Law”

RECENT LAW REVIEW ARTICLES OF INTEREST – ABSTRACTS

F. M. Kamm: “Cloning and Harm to Offspring”

Mark C. Modak-Truran: “A Pragmatic Justification of the Judicial Hunch”

Cass R. Sunstein: “Deliberative Trouble? Why Groups Go to Extremes”

Caleb Nelson: “Stare Decisis and Demonstrably Erroneous Precedents”

John Finnis: “Propter Honoris Respectum: On the Incoherence of Legal Positivism”

Abraham Bell and Gideon Parchomovsky: “Takings Reassessed”

RECENT PROGRAMS SPONSORED BY THE APACOMMITTEE ON PHILOSOPHY AND LAW

RECENT BOOKS OF INTEREST

Theodore Benditt, Editor Fall 2001 Volume 01, Number 1

APA NEWSLETTER ON

Philosophy and Law

FROM THE EDITOR

David Luban (Law, Georgetown) is now the chair of theCommittee on Philosophy and Law, whose other currentmembers are Professor Julie van Camp (Philosophy, Cal State-Long Beach), Claire Finkelstein (Law, U. Penn), BillEdmundson (Law, Georgia State), Lester Hunt (Philosophy,Wisconsin), and Joan McGregor (Philosophy, Arizona State).All of us extend our thanks to Stefan Baumrin, who has ablychaired the Committee for the past several years.

The Committee on Philosophy and Law regularlysponsors special meetings in conjunction with regularregional APA meetings. In this issue there is a listing of recentprograms, including topics and speakers.

The Current Issue of the NewsletterThe current issue of the Newsletter is entitled “Natural LawUpdate.” Natural law theories are among the oldestapproaches to both ethics and law. Skeptical challenges,however, have brought about modifications of the natural lawapproach. In the minds of some, furthermore, the naturallaw approach to law has been eclipsed by other approaches,most notably legal positivism. Recent years, though, haveseen a renewed interest in natural law theory, particularlywith the publication of John Finnis’s Natural Law and NaturalRights. It is in light of this renewed interest that it seemsappropriate for the Newsletter to take note of some recentdevelopments in natural law thinking.

In “An Outsider’s Guide to Natural Law Theory” BrianBix (Philosophy/Law, University of Minnesota) surveys thenatural law landscape, providing an overview of ideas about,and uses of, natural law—“what natural law is, what itsconnection is with religious belief, what it has to say aboutwicked governments, its relationship with legal positivism,and its prescriptions for constitutional adjudication.” Bixobserves, for example, that classical natural law theory wasprimarily concerned with moral or political matters, whereasin more recent times the focus has been on some of thenarrower concerns of social and legal theory, especially incontradistinction to positivism. He observes too that differentwriters have different ideas about the role of the ‘natural’ innatural law thinking, and that even within a particularframework of thought there are further divisions andsubcategories. Bix’s overview is a useful antidote to too-easyreferences to “natural law theory,” as if it is a clear and wellunderstood category.

Robert P. George (Jurisprudence, Princeton), in “Reason,Freedom, and the Rule of Law: Their Significance in theNatural Law Tradition,” argues that the rule of law cannot beunderstood, as it is frequently in legal positivism, merely as anonmoral good—that is, as a way of achieving governmentalefficiency. Instead, the rule of law has moral value; not onlydoes it diminish a ruler’s capacity for evil-doing, but alsoachieves an element of justice even when the laws beingenforced are substantively unjust. More to the point, though,it treats people with the dignity appropriate to human beingsin that it respects the fact that human beings are capable ofdeliberating, acting on reasons, and making free choices.This, George maintains, is a spiritual power—the “power tobe an ‘uncaused causing’”—and it morally requires thathuman beings be ruled in ways that are compatible with it. Itis this aspect of human nature that places the rule of law atthe center of natural law thinking.

In his “Judaism and Natural Law,” David Novak (JewishStudies, Toronto) is concerned to show that natural lawthought is compatible with, and is indeed a philosophicalpresupposition of, Judaism—“it [natural law] is required forthe intelligibility of the theological claim (certainly in Judaism)that God’s revelation is of immediate normative import.” How,Novak asks, could people “possibly accept the fuller versionof God’s law that comes with the historical revelation in thecovenant” if they “could not discover at least some of thatlaw for themselves before revelation?” In his discussionNovak advances ten propositions that investigate the role thatnatural law theory plays in Jewish thought.

Future Issues of the NewsletterTopics and editors for the next three issues of the Newsletterare:

Spring, 2002THE RULE OF LAW

Submission Deadline: January 15, 2002Editor: Theodore M. Benditt

Department of PhilosophyUniversity of Alabama at BirminghamBirmingham, AL [email protected](205) 934-4083

The rule of law is a central ideal in our thinking aboutgovernment. It proposes, at a minimum, that people shouldbe governed by means of general rules promulgated inadvance, so that they may know what is expected of themand conform their behavior appropriately. The point of theideal is to eliminate official despotism and even to minimizethe need for discretion on the part of government officials.

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Ambiguity and arbitrariness are the evils to be avoided. Therule of law is said to require that the state and its officials besubject to law and that the law and its application be public,general, and regular. The rule of law, it is sometimes said, isthe law of rules.

It is less clear, though, what the rule of law requires injudicial decision-making. What does the ideal have to saywhen it comes to so-called particularized justice (equity) thatmay not be strictly in accord with a legal rule? What does itsay with regard to any of a variety of exercises of discretionby judges? Jurists and philosophers across the spectrum areadvocates of the ideal, though there are different ideas of whatit requires. And for some, on both sides of the fence, Election2000 seriously tested the idea of the rule of law. Proposalsare welcome; please send to [email protected].

Fall, 2002FEMINIST JURISPRUDENCE

Submission Deadline: June 15, 2002Editor: Patricia Smith

Department of PhilosophyCUNY-Bernard Baruch CollegeP.O. Box G-143717 Lexington AvenueNew York, NY [email protected](212) 387-1675

Feminist jurisprudence is the analysis of law from theperspective of obtaining justice and equal treatment forwomen. It contains many different facets, focus points, andtheories. Recently some feminists have been focusing onglobal issues and the idea of women’s rights as human rights.It is interesting that the subordination and even the overtpersecution of women is always a civil internal matter,unsuited to intervention by other nations. The horrors ofAfghanistan poses a warning to concerned men and womeneverywhere. In the face of emerging militant fundamentalistsects, economic exploitation, and domestic violence womenare widely at risk, but national sovereignty apparentlyprecludes intervention. Globalism itself poses interestingdebates. If you are interested in submitting feminist workin any of these areas, please send abstract to:[email protected].

Spring, 2003LEGAL ETHICS

Submission Deadline: January 15, 2003Editor: David Luban

Georgetown University Law Center600 New Jersey Avenue, NWWashington, DC [email protected](202) 662-9000

ARTICLES

An Outsider’s Guide to Natural Law Theory

Brian H. Bix*

IntroductionFor reasons best known to others, I have in recent years beenasked to write a series of articles on natural law theory, mostlyfor general reference works.1 I come to the topic as anoutsider—if pressed, I would state that my affiliation was (andis) closer to legal positivism, the school of thought usuallythought of as natural law theory’s opposite. Writing aboutthat tradition without being a believer may allow me a betterperspective on natural law theory, or at least a useful view onhow the tradition has been treated within jurisprudence…or,it just may blind me to some things that are obvious to insiders.Optimistically assuming that it is more the former than thelatter, I will share some of what I have learned in being anoutsider trying to learn about natural law theory, and in tryingto explain natural law theory to outsiders. This article willoffer a brief overview of the questions and disputes that seemto arise most often: what natural law is, what its connectionis with religious belief, what it has to say about wickedgovernments, its relationship with legal positivism, and itsprescriptions for constitutional adjudication

Natural Law Theory—What is It?There are few topics or approaches in jurisprudence whichare the object of greater misunderstanding than natural lawtheory. Natural law theory is a mode of thinking systematicallyabout the connections between the cosmic order, morality,and law, which, in one form or another, has been around forthousands of years. Different natural law theories can havequite disparate objectives: e.g., offering claims generally aboutcorrect action and choice (morality, moral theory); offeringclaims about how one comes to correct moral knowledge(epistemology, moral meta-theory); and offering claims aboutthe proper understanding of law and legal institutions (legaltheory). Natural law has also played a central role in thedevelopment of modern political theory (regarding the roleand limits of government and regarding natural rights) andinternational law. While that tradition has been forced to themargins of moral and political thought, it has retained (or re-assumed) a prominent position within jurisprudentialdebates.2

One can find important aspects of the natural lawapproach in the ancient works of Plato, Aristotle, and Cicero;however, it is not given systematic form until Thomas Aquinasin the 13th century. In the medieval period and through theRenaissance, with the work of writers such as FranciscoSuárez, Hugo Grotius, Samuel Pufendorf, John Locke, andJean-Jacques Rousseau, natural law and natural rightstheories were integral parts of theological, moral, legal, andpolitical thought. The role natural law played in broaderreligious, moral and political debates varied considerably.Sometimes it was identified with a particular establishedreligion, or more generally with the status quo, while at other

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times it was used as a support by those advocating radicalchange. Similarly, at times, those writing in the natural lawtradition have seemed most concerned with the individual-based question, how is one to live a good (“moral,” “virtuous”)life?; at other times, the concern has been broader—socialor international: what norms can we find under which wecan all get along, given our different values and ideas aboutthe good?

Some of the modern legal theorists who identifythemselves with the natural law tradition seem to haveobjectives and approaches distinctly different from thoseclassically associated with natural law. Most of the classicaltheorists were basically moral or political theorists, asking:How does one act morally? Or, more specifically, what areone’s moral obligations as a citizen within a state, or as astate official? And, what are the limits of legitimate (that is,moral) governmental action? By contrast, some (but far fromall) of the modern theorists working within the tradition aresocial theorists or legal theorists, narrowly understood.

Natural law theory, is not, in modern parlance, primarilya theory of law. That is, its primar y focus, its labelnotwithstanding, was not the proper understanding of(positive) law, of people’s moral obligations within a legalsystem. Natural law, at its core, is an approach to morality,and to the meta-theoretical questions of the source of moraltruth, and how one comes to know such truths. It is also anapproach with ties to theology, as many of the theories withinthe tradition had, as integral elements, divine revelation,divine command, or the way in which humanity or naturereflect the divine plan or divine creation. As a moral system,natural law has often spoken to the implications of itsapproach to the ethical questions facing lawmakers andfacing citizens in both just and unjust societies.

Some of the modern theorists who carry the “natural law”label are social theorists or legal theorists, narrowlyunderstood. Their primary dispute is with other approachesto explaining or understanding society and law. In fact, muchof modern natural law theory has developed in reaction tolegal positivism, an alternative approach to theorizing aboutlaw. This is how theorists like Lon Fuller,3 Theodore Benditt,4

Ronald Dworkin,5 and Michael Moore6 can end up with thelabel “natural law” (in Dworkin’s case, reluctantly7 ) eventhough they are far from the Thomistic tradition.8

What makes a theory a “natural law” theory? There arealmost as many answers to the question as there are theoristswriting about natural law theory, or calling themselves“natural law theorists.” Some of the proffered definitions arequite broad. According to some commentators, all that seemsto be required for a theory to fit into that category is that itviews values as objective and accessible to human reason.9

Such a view might exclude very little: almost every moraltheory could qualify as a natural law theory, give or take themost hardened moral relativism, skepticism, ornoncognitivism. (Of course, in the cases of John Finnis andmany others self-described as natural law theorists, theirclaim for inclusion in the category is supported by theirconsciously working within a particular tradition, citing,discussing, and elaborating the views of prominentpredecessors.)

Many commentators define the category more narrowly,by offering more content to the word “natural.”10 Even here,

though, the explanations of “natural” can diverge radically:e.g., (1) moral principles can be read off of “Nature” or anormatively charged universe; (2) that moral principles aretied to human nature—and “nature” here is used to indicateeither the search for basic or common human characteristicsor (to the extent that this is different) some discussion ofhuman teleology, our purpose or objective within a larger,usually divine, plan; and (3) that there is a kind of knowledgeof moral truth that we all have by our nature as human beings.

A further sharp division exists within the classical orThomistic natural law tradition, among those who purport tobe interpreting and applying Aquinas’s ideas. One side claimsthat we come to know what is right and good by investigatinghuman nature, while the other side argues that knowledgeof the good and the right comes by another path (usually acombination of rationality and empirical observation), evenif the “basic human goods and moral norms are what theyare because human nature is what it is.”11 (One obviousadvantage of not trying to derive moral truths from descriptiveclaims about human nature is that one need not confront theobjection that this involves an inappropriate derivation of“ought” from “is.”12 )

One might sense a broad, perhaps metaphoric notionthat unites the various forms of traditional natural law, andmay even tie natural law moral/political theories to naturallaw legal/social theories. The focus within natural law is awayfrom conventional law, from civil law, to something higher or(to change the image) more basic that rules or guides,perhaps teleologically. In the voluntarist forms of traditionalnatural law, it is divine commands creating moral standards;in some forms of Thomistic natural law, it is an ideal towardswhich humans, by their nature, strive; in recent natural lawlegal theories, it is the sense to which conventional legal rulesare approximations of what law really is (Ronald Dworkin) orwhat law must try to be (Lon Fuller). Also, in most traditionalnatural law theories, natural law is not understood by analogyto (or as an imperfect version of) positive law, but rather theother way around: that it is natural law which is the primaryfocus, and positive law which should be understood byanalogy to, or as an imperfect version of, natural law.13

What is the Connection Between Natural Law and(Belief in) God?The great Western tradition of natural law theory14 has, formany centuries, and to some extent even today, been closelyassociated with one theological tradition, that of the CatholicChurch, but there are theories within the natural law traditionassociated with thinkers from other religions as well.15 Also,most of the important writers within this tradition have goneto some lengths to dissociate the principles of natural lawfrom belief in a particular religious tradition or from any kindof belief in a (certain kind of) deity. Grotius may have beenthe first to make the statement plainly: “What we have beensaying would have a degree of validity even if we shouldconcede that which cannot be conceded without the utmostwickedness, that there is no God, or that the affairs of menare of no concern to Him.”16

The context of 17th and 18th century writing on naturallaw may help to explain the diminished role of God in naturallaw theories from that time, and since. Some of the writersof that period were reacting against and trying to escape thetheological disputes and wars (particularly, though not


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exclusively, Protestant vs. Catholic) of the time, and weresearching for a way to ground a moral or political philosophythat could avoid such disputes. Similarly, some theorists weresearching for principles from which an international law couldbe constructed, principles which could be accepted bynations and peoples of very different faiths. Finally, politicaltheorists were looking for a basis to justify and limitgovernment, but in a way more favorable to individual liberty,and these theorists feared that a religious grounding wouldtend towards theocratic, authoritarian rule. All threedevelopments within natural law theory required a reducedrole of God—reduced, but usually not eliminated altogether,for God was often a handy basis for grounding ultimate dutiesand rights.

Contemporary writers within this tradition are oftenequally insistent about being able to offer “a theory of naturallaw without needing to advert to the question of God’sexistence or nature or will.”17 Yet one can still find theoristswithin the tradition who take the opposite position: that onecannot understand the notion of natural law without positinga supernatural being who is ordering compliance.18

The role of God within various natural law theories alsoallows one to differentiate such theories along the lines ofthe relative prevalence of “will” or “reason.”19 At one extremeis “voluntarism,” a sub-category of natural law theories inwhich God—and, in particular, God’s will—plays an importantrole. Voluntarism of one type or another appears regularly inthe history of natural law theory. The opposite extreme, areason-based approach, would equate virtue withreasonableness rather than tying it to the “will” or orders ofany entity.20

Was Nazi Law “Law”?Strongly influenced by the debate between H.L.A. Hart andLon Fuller21 (which in turn was a discussion of some workby the German legal-positivist-turned-natural-lawyer, GustavRadbruch), many students (and probably some academicsas well) think that natural law theory, and its disagreementwith legal positivism, is all about whether to call the officialactions and enactments of Nazi officials (and the officials ofother evil regimes) “law” or not.

This is a strange question, and the answer might bestraight-forward if the inquiry is untangled. We understandwhat people mean when they assert that the Nazis did havelaw—in that the regime had institutions and procedures thatresemble, at least on the surface, the institutions andprocedures to which we give that label. On the other hand,we also understand those who assert that the Nazis did nothave law—in that the regime was both procedurally andsubstantively so unjust that the officials’ actions andenactments did not create the kind of moral obligations thatlaws usually create.22 Modern Thomists tend, in any event,not to speak in terms of a wicked governments “not havinglaw”; they more precisely, and more helpfully, argue that suchgovernments “do not have law in the fullest sense of theword.”23 It is a combination of the two views just mentioned:that the rules have the appearance of law, but, because theyare not sufficiently just, they do not carry the same moralweight that laws usually do.

A somewhat more subtle variation of the same theme,which also derives (or can be fairly read into) the Hart-Fuller-Radbruch debate, views the argument between natural law

theory and legal positivism as being all about which approachwould make it easier for citizens in the future to withstandevil regimes.24 However, for those of us either disinclined totake a fully pragmatist approach to evaluating legal theories(considering only their “usefulness” and never their “truth”or “explanatory power”) or skeptical about the ability of legaltheory to have a significant effect on social progress, this isan unproductive way to approach natural law theory—or legalpositivism.

What is the Disagreement Between Natural Law andLegal Positivism?What is the disagreement between natural law theory andlegal positivism? This is a trickier question than may at firstappear. There is no lack of assertions on this topic, but thereseems to be more misunderstanding than insight. This isbecause there is relatively little real interchange between thecamps; mostly theorists on one side (mis-)characterize whatthey think advocates on the other side believe in.

There is no problem finding legal positivists who believethat natural law theories reduce to the belief that “only justrules can be called ‘law’.”25 The caricature in the otherdirection usually involves the portrayal of legal positivism asbeing that all law should be applied as written,26 or that itshould be evaluated and applied without any concern forjustice.27

Recently, there has been a realization by major figuresfrom both camps that there are more grounds for agreementthan for disagreement. H.L.A. Hart,28 Neil MacCormick,29

Joseph Raz,30 and John Finnis31 have each recognized thatmuch of what the “opposing” camp has been asserting is notin fact incompatible with the core of his own theory. Whenlegal positivists are (as a matter of legal positivism) agnosticon the questions of moral objectivity and moral epistemologythat concern traditional natural law theory, and as natural lawtheory can accept that “law,” broadly understood, has nonecessary moral content, the points of disagreement becomeharder to discern.

This apparent lack of fundamental disagreement may notbe that surprising. The two theories are basically orthogonal:legal positivism is a narrow conceptual approach to the natureof law, with some overtones of the social sciences; whilenatural law theory is a broad approach to morality (andtheology), with implications for law—and everything else aswell.

This does not mean, however, that there are no points ofdifference. One place to look for substantive disagreementis in the project of theorizing about (the nature of) law.32 Legalpositivism can be seen as arguing for a morally neutraldescriptive or conceptual theory of law, while natural lawtheory (or at least a number of theorists within that tradition)can be seen as denying that possibility. Here I would includethe “procedural natural law” theorist Lon Fuller as well asthe traditional natural law theorist John Finnis. (If oneincludes Ronald Dworkin in a broad reading of “natural lawtheory,” he would be included as well, though for somewhatdifferent reasons.33 )

Finnis and Fuller can both be seen as arguing that onecannot properly understand law except in the context of whatit aspires to. For Finnis,34 this aspiration would be to justicein the fullest sense of the term, while for Fuller it would likelybe the procedural aspects of justice—what he calls the


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“internal morality of law.”35 Thus, there is basic disagreementhere, if no place else, between natural law theory and legalpositivism: on whether it is valuable, or even viable, to createa purely descriptive or purely conceptual theory of law.

Does Natural Law Require a Radically DifferentApproach to Constitutional Adjudication?American legal scholars, at least in recent decades, havebecome fixated on judging, particularly constitutionaladjudication. This may be understandable, given thecentrality of constitutional law to current legal practice, and,to some extent, to American political life generally. However,the focus on adjudication and constitutional adjudication hascaused American scholars to misunderstand, or at leastdistort, theorists from countries or traditions whereadjudication is not as central.36 It is not surprising thatAmerican commentators have sometimes misunderstoodnatural law theory in a similar way: as a (radical) set ofinstructions to judges.37

When Clarence Thomas was nominated to be a Justiceon the United States Supreme Court, much was made ofThomas’ apparent endorsement, in some of his writings, ofnatural law as relevant to constitutional interpretation.38

Thomas removed much of the debate about natural lawtheory from his nomination hearing by renouncing any prioradherence to natural law theory as a central aspect ofconstitutional adjudication. However, this has not stoppedother theorists from assuming that natural law theory requiresan activist approach to adjudication.

However, there is no reason to believe that natural lawtheory would be particularly activist about constitutionaladjudication, or about adjudication generally.39 Traditionalnatural law theories are basically moral theories (they alsooften have theological aspects, but these aspects do not affectthe present inquiry). A follower of a particular natural lawtheory might have views about what is morally right andwrong, and also about how one should come to suchjudgments, but people who come to their moral judgmentsfrom other traditions and using other approaches would beno differently placed when considering problems ofadjudication. The basic question remains the same: howshould judges act when the law seems to require a resultthat is contrary to what is right?

(There is one type of moral theory that might have a moredirect effect on one’s theory of adjudication: one that has askeptical or nihilistic view about morality. Those who do notbelieve in moral truth will never be bothered by the questionof legal truths conflicting with moral truths. Some peoplebelieve that much of Oliver Wendell Holmes’ approach toconstitutional adjudication can be explained by hisskepticism: as he did not believe in grand foundational truths,he saw no justification for judges to stop popular majoritiesfrom whatever plans they chose to enact through thelegislature.40 )

There are contrary views. In the rich and varied world ofnatural law theory, it is not difficult to find theorists whosenatural law beliefs do seem to be the central justification foradvocating a more activist approach to constitutionaladjudication.41 However, this seems to be the exceptionrather than the rule.

ConclusionThe natural law tradition has a long and interesting history—of which most of us who talk about “natural law” in legalphilosophy are, to put the matter mildly, under-informed. Weoutsiders, accustomed to speaking in terms of prescriptionsfor judges, or analytical claims, may take a while to feel athome amid the meta-ethical and teleological claims of thenatural law tradition. However, greater familiarity with thistradition may, one hopes, increase our understanding of whatis, and is not, at stake in the jurisprudential debates.

* Department of Philosophy and School of Law, University ofMinnesota.

Endnotes1. See Brian Bix, “Natural Law Theory,” in Dennis Patterson, ed., ACompanion to Philosophy of Law and Legal Theory (Oxford:Blackwell Publishers, 1996): 223; “On the Dividing Line BetweenNatural Law Theory and Legal Positivism,” Notre Dame Law Review75 (2000): 1613; Brian Bix, “Natural Law Theory,” in Jonathan Michie,ed., Reader’s Guide to the Social Sciences (London: Fitzroy Dearborn,2001), 1100; “Natural Law Theory: The Modern Tradition,” in Jules L.Coleman & Scott Shapiro, eds., Handbook of Jurisprudence and LegalPhilosophy (Oxford: Oxford University Press, forthcoming, 2002).Portions of this article are taken, in modified form, from Bix (2002).2. The modern resurgence of natural law thinking within English-language legal theory is usually traced to John Finnis, Natural Lawand Natural Rights (Oxford: Clarendon Press, 1980). Among otherrecent works of interest are Robert P. George, ed., Natural LawTheory: Contemporary Essays (Oxford: Clarendon Press, 1992);Robert P. George, ed., Natural Law, Liberalism, and Morality (Oxford:Clarendon Press, 1996); David F. Forte, ed., Natural Law andContemporary Public Policy (Washington, D.C.: GeorgetownUniversity Press, 1998); and Robert P. George, In Defense of NaturalLaw (Oxford: Clarendon Press, 1999).3. Lon L. Fuller, The Morality of Law (rev. ed., New Haven: YaleUniversity Press, 1969).4. Theodore M. Benditt, Law as Rule and Principle: Problems of LegalPhilosophy (Stanford: Stanford University Press, 1978).5. Ronald Dworkin, Law’s Empire (Cambridge: Harvard UniversityPress, 1986).6. Michael Moore, Educating Oneself in Public: Critical Essays inJurisprudence (Oxford: Oxford University Press, 2000).7. See Ronald Dworkin, “‘Natural’ Law Revisited,” University of FloridaLaw Review 34 (1982): 165.8. As mentioned later in this section, there is a sense in which onecan see the two different types of natural law—natural law as moral/political theory and natural law as legal/social theory—as connectedat a basic level: as both exemplifying a view of (civil) law not merelyas governing, but also as being governed. I discuss this connectionin greater detail in Bix (2002).9. See Finnis (1980), 23-25.10. See, for example, Lloyd L. Weinreb, Natural Law and Justice(Cambridge: Harvard University Press, 1987), 15-42.11. George (1999), 85.12. See Finnis (1980), 33-36.13. See, for example, Russell Hittinger, “Natural Law as ‘Law’:Reflections on the Occasion of ‘Veritatis Splendor’, ” AmericanJournal of Jurisprudence 39 (1994): 1.14. There also appear to be non-Western traditions comparable tothe Western natural law tradition discussed in this article, see, e.g.,Surya Prakash Sinha, Jurisprudence: Legal Philosophy (St. Paul: WestPublishing, 1993), 84-6 (discussing natural law theories of ancientChina and India). However, those schools of thought are beyondthe scope of this article.


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15. There is a long tradition of natural law thinking among Protestanttheorists, e.g., with Hugo Grotius, Samuel Pufendorf, and FrancisHutcheson. On the tradition’s roots within Judaism, see David Novak,Natural Law in Judaism (Cambridge: Cambridge University Press,1998).16. Hugo Grotius, De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey,trans., Oxford: Clarendon Press, 1925) (1625), 13 (“Prolegomena,”para. 11). The position can probably be traced back to earlier writers,including Gregor of Rimini, Francisco de Vitoria, and FranciscoSuárez. See Finnis (1980), 54.17. Finnis (1980): 49; see also Michael S. Moore, “Good Without God,”in Robert P. George, ed., Natural Law, Liberalism, and Morality(Oxford: Clarendon Press, 1996), 221.18. See, for example, Ronald R. Garet, “Natural Law and CreationStories,” in J. Roland Pennock & John W. Chapman, eds., Religion,Morality, and the Law: NOMOS XXX (New York: New York UniversityPress, 1988), 236-37; John T. Noonan, Jr., “The Natural Law Banner,”in David F. Forte, ed., Natural Law and Contemporary Public Policy(Washington, D.C.: Georgetown University Press, 1998), 382.19. On using the dichotomy of “will” and “reason” to understandaspects of jurisprudence generally, see, for example, Vernon J.Bourke, Will in Western Thought: An Historico-Critical Survey (NewYork: Sheed & Ward, 1964); Brian Bix, Jurisprudence: Theory andContext (2nd ed., Durham: Carolina Academic Press, 1999), 121-26.20. There is also a form of natural law theory that seems to take acompromise between a “will” approach and a “reason” approach:this form asserts that actions are intrinsically good or bad, but weare only obligated to pursue the good because God so commandsus; this was Francisco Suárez’s view. See Francisco Suárez, On Lawand God the Lawgiver, Book II, Chapter VI, excerpted in J. B.Schneewind, ed., Moral Philosophy from Montaigne to Kant, vol. I,(Cambridge: Cambridge University Press, 1990), 76-79.21. H.L.A. Hart, “Positivism and the Separation of Law and Morals,”Harvard Law Review 71 (1958): 593; Lon L. Fuller, “Positivism andFidelity of Law—A Reply to Professor Hart,” Harvard Law Review 71(1958): 630.22. Ronald Dworkin, “Legal Theory and the Problem of Sense,” inRuth Gavison, ed., Issues in Contemporary Legal Philosophy (Oxford:Clarendon Press, 1987), 15-17.23. See, for example, Norman Kretzmann, “Lex Iniusta Non Est Lex:Laws on Trial in Aquinas’ Court of Conscience,” American Journalof Jurisprudence 33 (1988): 99.24. See, for example, Frederick Schauer, “Fuller’s Internal Point ofView,” Law and Philosophy 13 (1994): 313.25. See, for example, Jules L. Coleman & Brian Leiter, “LegalPositivism,” in Dennis Patterson, ed., A Companion to Philosophy ofLaw and Legal Theory (Oxford: Blackwell, 1996), 244.26. See, for example, Anthony Sebok, Legal Positivism in AmericanJurisprudence (Cambridge University Press, 1998), 104-12, and LonFuller’s embodiment of legal positivism, as he saw it, in “Judge Keen”in Lon L. Fuller, “The Case of the Speluncean Explorers,” HarvardLaw Review 62 (1949): 631-37.27. Gustav Radbruch’s characterization of legal positivism in this wayis summarized in Stanley L. Paulson, “Lon L. Fuller, Gustav Radbruch,and the ‘Positivist’ Theses,” Law and Philosophy 13 (1994): 329-31.28. H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford:Clarendon Press, 1983), 10.29. Neil MacCormick, “Natural Law and the Separation of Law andMorals,” in Robert P. George, ed., Natural Law Theory: ContemporaryEssays (Oxford: Clarendon Press, 1992), 105.30. Joseph Raz, “The Morality of Obedience,” Michigan Law Review83 (1985): 739.31. John Finnis, “The Truth in Legal Positivism,” in Robert P. George,ed., The Autonomy of Law: Essays on Legal Positivism (Oxford:Clarendon Press, 1996), 195.32. I consider this question and response at greater length in Bix(2000).

33. For Dworkin, morality becomes part of a theory of law because atheory of law should be a constructive interpretation of legal practice,an interpretation that reads past official actions in the morally bestway possible. See Dworkin (1986).34. The most recent summary of Finnis’ critique of legal positivismoccurs in John Finnis, “On the Incoherence of Legal Positivism,” NotreDame Law Review 75 (2000): 1597.35. Fuller (1969). Fuller also seemed to assume, or believe, thatsocieties that met the procedural requirements of justice would likelyalso be substantively just. See Fuller (1958), 626. This belief hasbeen regularly refuted by the evidence. However, I do not think thatthe belief is in any way important to Fuller’s basic claim.36. I think part of the way that H.L.A. Hart and Ronald Dworkinconsistently talked past one another in their critical exchanges canbe attributed to this different set of concerns.37. In Anthony Sebok’s otherwise excellent recent book, Sebok(1998), he at times misreads both the legal positivists and the naturallaw theorists by construing them as (primarily) offering instructionsto judges on how to decide cases. Brian Bix, “Positively Positivism:Reviewing Legal Positivism in American Jurisprudence, Virginia LawReview 85 (1999): 903-15 & n. 131.38. See, e.g., Clarence Thomas, “The Higher Law Background of thePrivileges and Immunities Clause of the Fourteenth Amendment,”Harvard Journal of Law and Public Policy 12 (1989): 63; ChristopherWolfe, “Judicial Review,” in David F. Forte, ed., Natural Law andContemporary Public Policy (Washington, D.C.: GeorgetownUniversity Press, 1998), 169-70.39. See, for example, George (1999), 110-11.40. See, for example, G. Edward White, “Revisiting Substantive DueProcess and Holmes’s Lochner Dissent,” Brooklyn Law Review 63(1997): 127.41. See, for example, Michael S. Moore, “Justifying the Natural LawTheory of Constitutional Interpretation,” Fordham Law Review 69(2001): 2087.

Reason, Freedom, and the Rule of Law: TheirSignificance in the Natural Law Tradition

Robert P. George*

The idea of law, and the ideal of the rule of law, are central tothe natural law (and, more generally, the western) traditionof thought about public (or “political”) order. St. ThomasAquinas went so far as to declare that “it belongs to the verynotion of a people [ad rationem populi] that the people’sdealings with each other be regulated by just precepts oflaw.”1 In our own time, Pope John Paul II has forcefullyreaffirmed the status of the rule of law as a requirement offundamental political justice.2 For all the romantic appeal of“palm tree justice” or “Solomonic judging,” and despite thesometimes decidedly unromantic qualities of living by pre-ordained legal rules, the natural law tradition affirms thatjustice itself requires that people be governed in accordancewith the principles of legality.

Among the core concerns of natural law theorists andother legal philosophers in recent decades has been themeaning, content, and moral significance of the rule of law.The renewal of interest in this very ancient question (or setof questions) has had to do above all, I think, with theunprecedented rise and fall of totalitarian regimes. In theaftermath of the defeat of Nazism, legal philosophers of everyreligious persuasion tested their legal theories by asking, forexample, whether the Nazi regime constituted a legal systemin any meaningful sense. In the wake of communism’s


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collapse in Europe, legal scholars and others are urgentlytrying to understand the role of legal procedures andinstitutions in creating and sustaining decent democraticregimes. It has been in this particular context that Pope JohnPaul II has had occasion to stress the moral importance ofthe rule of law.

One of the signal achievements in legal philosophy inthe Twentieth Century was Lon L. Fuller’s explication of thecontent of the rule of law.3 Fuller unhesitatingly availedhimself of the resources of the natural law tradition indeveloping what he referred to as a “procedural natural lawtheory.” Reflecting on law as a “purposive” enterprise—thesubjecting of human behavior to the governance of rules—Fuller identified eight constitutive elements of legality. Theseare (1) the prospectivity (i.e., non-retroactivity) of legal rules;(2) the absence of impediments to compliance with the rulesby those subject to them; (3) the promulgation of the rules;(4) their clarity; (5) their coherence with one another; (6)their constancy over time; (7) their generality of application;and (8) the congruence between official action and declaredrule. Irrespective of whether a legal system (or a body oflaw) is good or bad, that is to say, substantively just or unjust,to the extent that it truly is a legal system (or a body of law) itwill, to some significant degree, exemplify these elements.

It was a mark of Fuller’s sophistication, I think, that henoticed that the rule of law is a matter of degree. Itsconstitutive elements are exemplified to a greater or lesserextent by actual legal systems or bodies of law. Legal systemsexemplify the rule of law to the extent that the rulesconstituting them are prospective, susceptible of beingcomplied with, promulgated, clear, etc.

Even Fuller’s critics recognized his achievement inexplicating the content of the rule of law. What they objectedto was Fuller’s claims—or, in any event, what they took to beFuller’s claims—on its behalf. Provocatively, Fuller assertedthat, taken together, the elements of the rule of law, thoughin themselves procedural, nevertheless constitute what hecalled an “internal morality of law.” (Hence, the title of Fuller’smajor work on the subject of the rule of law: The Morality ofLaw.) Moreover, he explicitly presented his account of therule of law as a challenge to the dominant “legal positivism”of his time. According to Fuller, once we recognize that law,precisely as such, has an internal morality, it becomes clearthat the “conceptual separation of law and morality” whichforms the core of the “positivist” understanding of law, legalobligation, and the practical functioning of legal institutionscannot be maintained.

These claims drew sharp criticism from, among others,Herbert Hart, the Oxford legal philosopher whose magisterial1961 book The Concept of Law4 both substantially revisedand dramatically revitalized the legal positivist tradition inanalytical jurisprudence. In a now famous review essay inthe Harvard Law Review, Hart accused Fuller of, in effect,engaging in a semantic sleight of hand.5 According to Hart,there isn’t the slightest reason to suppose that the constitutiveelements of legality which Fuller correctly and very usefullyidentified should be accounted as a “morality” of any sort.As Fuller himself seemed to concede, unjust (or otherwisemorally bad) law can exemplify the procedural elements oflegality just as fully as just law can. But if that is true, then it isworse than merely tendentious to claim that these elementsconstitute an “internal morality of law.”

Indeed, Fuller’s critics have observed that even the mostwicked rulers sometimes have purely self-interested reasonsto put into place, and operate strictly in accordance with, legalprocedures. Yet even the strictest adherence to the forms oflegality cannot ensure that the laws they enact and enforcewill be substantively just or even minimally decent. Replyingto Hart and other critics, Fuller argued that the historical recordshows that thoroughly evil regimes, such as the Nazi regime,consistently fail to observe even the formal principles oflegality. In practice, the Nazis, to stay with the example, freelydeparted from the rule of law whenever it suited theirpurposes to do so. So Fuller defied Hart to provide “significantexamples of regimes that have combined a faithful adherenceto the [rule of law] with a brutal indifference to justice andhuman welfare.”6

Now, it is important to see that Fuller’s claim here is notthat regimes can never perpetrate injustices—even graveinjustices—while respecting the desiderata of the rule of law.It is the weaker, yet by no means trivial, claim that regimesthat respect the rule of law do not, and cannot so long as theyadhere to the rule of law, degenerate into truly monstroustyrannies like the Nazis.

Still, Fuller ’s critics were unpersuaded. My ownesteemed teacher, Joseph Raz, one of Hart’s greatest studentsand now his literary executor, pursued a more radical line ofargument to deflate Fuller’s claim that the elements of therule of law constitute an internal morality. Raz suggested thatthe rule of law is a purely instrumental, rather than any sortof moral, good. He analogized the rule of law to a sharpknife—an efficient instrument, and, in that nonmoral sense“good,” but equally serviceable in morally good and badcauses.7 Indeed, according to Raz, insofar as the institutionand maintenance of legal procedures improves governmentalefficiency, they increase the potential for evil doing of wickedrulers.

Fuller’s arguments have, however, won some converts.Most notably, perhaps, Neil MacCormick, who had onceshared Raz’s view that the requirements of the rule of law“can in principle be as well observed by those whose lawswreak great substantive injustice as by those whose laws arein substance as just as they can possibly be,” eventuallyrevised his opinion to give some credit to Fuller’s claim thatthe elements of the rule of law constitute a kind of internalmorality.

There is always something to be said for treatingpeople with formal fairness, that is, in a rational andpredictable way, setting public standards for citizens’conduct and officials’ responses thereto, standardswith which one can judge compliance or non-compliance, rather than leaving everything todiscretionary and potentially arbitrary decision. Thatindeed is what we mean by the “Rule of Law.”Where it is observed, people are confronted by astate which treats them as rational agents due somerespect as such. It applies fairly whatever standardsof conduct and of judgment it applies. This has realvalue, and independent value, even where thesubstance of what is done falls short of any relevantideal of substantive justice.8

MacCormick’s revised understanding strikes me assounder than the contrary understanding of Hart and Raz whorefuse to accord to the requirements of the rule of law any of


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the sort of more-than-merely-instrumental value thatMacCormick labels “independent,” and I would bite the bulletand call “moral.” Plainly it is the case that well-intentionedrulers who genuinely care for justice and the common goodof the communities they govern will strive for proceduralfairness—and will do so, in part, because they understandthat people, as rational agents, are due the respect that ispaid them when officials eschew arbitrary decisionmakingand operate according to law. And we can understand thiswithout the need for sociological inquiry into the way thingsare done by officials in more or less just regimes. Rather, it isthe fruit of reflection on what such officials ought to dobecause they owe it to those under their governance. But if Iam right about this, then respect for the requirements of therule of law is not a morally neutral matter—despite the factthat the elements of the rule of law are themselves procedural.Rather, rulers or officials have moral reasons, and, inasmuchas these reasons are generally conclusive, a moral obligation,to respect the requirements of the rule of law.

Of course, respect for the rule of law does not exhaustthe moral obligations of rulers or officials towards thosesubject to their governance. Nor, as Fuller’s critics such asHart and Raz correctly observe, does respect for the rule oflaw guarantee that the substance of the laws will be just. IfRaz went too far in one direction by treating the rule of law asa morally neutral “efficient instrument,” boosters of the ruleof law can easily go too far in the other direction by supposingthat the achievement and maintenance of the rule of lawimmunizes a regime against grave injustice and even tyranny.

Here historical and sociological inquiry is the antidote tooverblown claims. Apartheid and even slavery have coexistedwith the rule of law. And those legal positivists who claimedthat even the Nazi regime worked much of its evil throughformally lawful means were not without evidence to supporttheir view. I would therefore venture on behalf of the rule oflaw only the following modest claim when it comes to thequestion of its alleged incompatibility with grave substantiveinjustice: An unjust regime’s adherence to preannounced andstable general rules, so long as it lasts, has the virtue of limitingthe rulers’ freedom of maneuver in ways that will generallyreduce, to some extent, at least, their capacity for evil-doing.Potential victims of injustice at the hands of wicked rulerswill generally benefit, if only to a limited extent, from theirrulers’ willingness, whatever its motivation, to respect therequirements of the rule of law.

Thinkers in the natural law tradition from Plato to JohnFinnis have warned that wherever the rule of law enjoysideological prestige ill-intentioned rulers will find it necessaryto—and will—adhere to constitutional procedures and otherlegal forms as a means of maintaining or enhancing theirpolitical power.9 Plato himself had no illusions that adherenceto such procedures and forms would guarantee substantivelyjust rule. Nevertheless, he noticed that even apart from theself-interested motives of evil rulers sometimes to act inaccordance with principles of legality, decent rulers alwaysand everywhere have reason to respect these principles; forprocedural fairness is itself a requirement of substantivejustice—one that is always desirable in human relations and,in particular, in the relationships between those exercisingpolitical power and those over whom such power is exercised.

Where the rule of law is respected, there obtainsbetween the rulers and the ruled a certain reciprocity. Now,

this reciprocity will certainly be useful in securing certaindesirable ends to which it is a means. I have in mind, forexample, various elements of social order, including efficiencyin the regulation and/or delivery of public services, andpolitical stability, particularly in times of stress. But Plato’spoint, and I see no reason to doubt it, is the moralphilosophical one that, given the dignity of human beings,this sort of reciprocity is more than merely a means to otherends. As such, it ought to be protected and advancedwherever possible, and it may not lightly be sacrificed evenfor the sake of other important goods.

Now, there is a lot packed into my little phrase—moreKantian in flavor, I suppose, than Platonic—”given the dignityof human beings.” Although most people have moralobjections to cruelty toward animals, we do not consider thatpets or farm animals are to be governed in accordance withthe requirements of the rule of law. Within the bounds ofdecency, we hope, the farmer resorts rather to Pavlovianmethods, or, indeed, to whatever it takes to get the chickensto lay and the cows into pasture. Indeed, it would be pointlessto attempt to rule nonhuman animals by law since lawscannot function for chickens and cows as reasons for theiractions. The farmer, rather, causes (or, at least, attempts tocause) the animal behavior he desires. Humans, by contrast,can be governed by law because legal rules can function intheir practical deliberation as what Herbert Hart described—in an important break with his positivist predecessors,Bentham and Austin, who conceived of legal rules as causesof human behavior, rather than as reasons—as “content-independent, peremptory reasons for action.”10

Virtually all philosophical accounts of human dignitystress the moral significance of human rationality. Peopleare, in the phrase of Neil MacCormick’s which I’ve alreadyquoted, “due some respect, as rational agents.” But if this istrue, as I believe it is, then perhaps it is worth pausing toconsider why and how governance in accordance with therequirements of the rule of law treats people with some ofthe respect that they are due as rational agents. What is itabout human rationality that entails a dignity which is violatedwhen rulers treat those subject to their rule the way farmerstreat livestock?

Today, when one speaks of human rationality (in virtuallyany context) one will be understood to be referring to whatAristotle labeled “theoretical” rationality. (Theoretical, asopposed to what Aristotle labeled “practical,” rationalityinquires into what is, was, or could be the case about thenatural, social, or supernatural world; practical rationalityidentifies possibilities for choice and action and inquires intowhat ought to be done.) Merely theoretically rational beings,however, could not be ruled by law and would, in any event,no more deserve to be ruled by law than computers deservesuch rule. It is hard to see how even theoretically rationalagents who, unlike computers , were capable of (i)experiencing feelings of desire, and (ii) bringing intellectualoperations to bear in efficiently satisfying their desires, couldbe due the respect implied by the rule of law or otherrequirements of morality. (This is why instrumentalist theoriesof practical reason such as Hobbes’s11 or Hume’s12 —not tomention the various contemporary reductionist accounts ofhuman behavior which understand human beings ascomputers with emotions—have difficulty providing an even


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remotely plausible account of human dignity, and only rarelyoffer to do so.) Such agents would not be capable ofexercising practical reason and making moral choices. Theirbehavior could only be caused—ultimately either by externalcoercion or internal compulsion.13 Lacking the capacityultimately to understand and act on the basis of more-than-merely-instrumental reasons, they would literally be beyondfreedom and dignity.

My proposition is that the rationality which entitles peopleto the sort of respect exemplified in the principles of the ruleof law is not primarily the rationality that enables people tosolve mathematical problems, or understand the humanneural system, or develop cures for diseases, or inquire intothe origins of the universe or even the existence and attributesof God. It is, rather, the rationality that enables us to judgethat mathematical problems are to be solved, that the neuralsystem is to be understood, that diseases are to be cured,and that God is to be known and loved. It is, moreover, thecapacity to distinguish fully reasonable possibilities for choiceand action from possibilities that, while rationally grounded,fall short of all that reason demands.14

In short, the dignity that calls forth the respect due torational agents in the form of, among other things, governancein accordance with the rule of law flows from our nature aspractically intelligent beings, that is, beings whose nature isto understand and act on more-than-merely-instrumentalreasons. The capacity to understand and act on such reasonsstands in a relationship of mutual entailment with the humancapacity for free choice, that is, our capacity to deliberate andchoose between or among open possibilities (i.e., options)that are provided by “basic human goods,” i.e., more-than-merely-instrumental reasons.

Free choice exists just in case people have, are aware of,and can act upon such reasons; people have, are aware of,and can act upon such reasons just insofar as they have freechoice. But if it is true that people possess reason andfreedom, then they enjoy what can only be described asspiritual powers,15 and, it might even be said, a certain sharingin divine power—viz., the power to bring into being that whichone reasonably judges to be worth bringing into being(something “of value”), but which one is in no sensecompelled or “caused” to bring into being.

What is God-like, albeit, of course, in a very limited way,is the human power to be an “uncaused causing.” This, Ibelieve, is the central meaning and significance of the(otherwise extraordinarily puzzling) Biblical teaching that man(unlike other creatures) is made in the very “image andlikeness of God.”16 This teaching expresses in theologicalterms (and proposes as a matter of revealed truth) thephilosophical proposition I have been advancing about thedignity flowing from the nature of human beings as practicallyintelligent creatures. Its upshot is not that human beings maynot legitimately be ruled, but that they must be ruled in waysthat accord them the respect they are due “as rational agents.”Among other things, it requires that the rule to which humanbeings are subjected is the rule of law.

Reflection on the relationship of human reason andfreedom helps, I believe, to make sense of the centrality oflaw, and the rule of law, in natural law thought about politicalmorality. In particular, it helps to explain the stress laid uponthe ideal of the rule of law as a fundamental principle of

political justice in a tradition stretching from classical andmedieval thinkers to John Paul II.

* McCormick Professor of Jurisprudence and Director of the JamesMadison Program in American Ideals and Institutions, PrincetonUniversity.

Endnotes1. St. Thomas Aquinas, Summa theologiae, I-II, q. 105, a. 2c.2. See the encyclical letter of Pope John Paul II, Sollicitudo Rei Socialis(1987).3. See especially Lon L. Fuller, The Morality of Law (New Haven:Yale University Press, 1964).4. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).5. H.L.A. Hart, “Review of Lon L. Fuller, The Morality of Law,” HarvardLaw Review, Vol. 78 (1965), pp. 1281-1296.6. Fuller, The Morality of Law (2nd edition, with “Reply to Critics,”1969), p. 154.7. See Joseph Raz, “The Rule of Law and Its Virtue,” Law QuarterlyReview, Vol. 93 (1977) at p. 208.8. Neil MacCormick, “Natural Law and the Separation of Law andMorals,” in Robert P. George (ed.), Natural Law Theory:Contemporary Essays (Oxford: Clarendon Press, 1992), pp. 105-133,at 123 (emphasis supplied).9. See Plato, Statesman, 291a-303d; John Finnis, Natural Law andNatural Rights (Oxford: Clarendon Press, 1980), p. 274.10. See H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press,1983), ch. 10. For a particularly illuminating account of the differencesbetween reasons and causes, see Daniel N. Robinson, Philosophyof Psychology (New York: Columbia University Press, 1985), pp. 50-57.11. See Thomas Hobbes, Leviathan (1651), pt. 1, ch. 8.12. See David Hume, A Treatise of Human Nature (1740), bk. 2, pt. 3,sec III.13. See Germain Grisez, Joseph M. Boyle, Jr., and Olaf Tollefsen, FreeChoice: A Self-Referential Argument (South Bend: University of NotreDame Press, 1976).14. For an explanation of this point, see Robert P. George “NaturalLaw Ethics,” in Philip L. Quinn and Charles Taliaferro (eds.) ACompanion to Philosophy of Religion (Oxford: Blackwell Publishers,Ltd., 1997), ch. 58. See also, Robert P. George, Making Men Moral:Civil Liberties and Public Morality (Oxford: Clarendon Press, 1993),pp. 8-18.15. On the status of free choices as “spiritual” entities, see GermainGrisez, The Way of the Lord Jesus, Vol. 1: Christian Moral Principles(Chicago: Franciscan Herald Press, 1983), pp. 50-52.16. “[M]an is said to be made in God’s image, insofar as the imageimplies an intelligent being endowed with free-will and self-movement: now that we have treated of the exemplar, i.e., God, andthose things which come forth from the power of God in accordancewith his will; it remains for us to treat of His image, i.e., man,inasmuch as he too is the principle of his actions, as having free-willand control of his actions.” St. Thomas Aquinas, Summa theologiae,I-II, Prologue (emphasis in the original).


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Judaism and Natural Law

David Novak*There are two basic assumptions about natural law that haveprevented many from seeing how Judaism affirms it, and howthinkers working within the Jewish tradition have and still doconstruct theories about it. These assumptions must berejected at the outset in order for a discussion of “Judaismand Natural Law” to have the seriousness any discussion ofeither Judaism or natural law or both must have to be worthyof its object.

The first assumption to be rejected is that the true matrixof natural law theory can only lie in classical Greek philosophy.As such, any subsequent attempts to graft natural law theoryonto another way of thinking, especially onto any theology ofrevelation, are ultimately incoherent. That was the view ofthe late Leo Strauss, who famously said:

The idea of natural right must be unknown as long asthe idea of nature is unknown. The discovery of nature is thework of philosophy. Where there is no philosophy, there is noknowledge of natural right as such. The Old Testament, whosebasic premise may be said to be the implicit rejection ofphilosophy, does not know “nature.”1

If Strauss is right (and I think he is wrong), Catholic naturallaw theory is ultimately as incoherent as Jewish natural lawtheory since both Judaism and Catholicism (indeed, allChristianity) base their respective claims on the Hebrew Bibleor “Old Testament.”2 If Strauss is right, then that basisbecomes an abyss (an Abgrund rather than a Grund) for anyphilosophically cogent construction of natural law theory.Hence, in order for either Jewish or Catholic natural law theoryto be authentic theologically, it must find a Hebraic foundationfor its enterprise inasmuch as both Judaism and Christianityare two traditions basing themselves, often quite differently,on the same book.3 Then it must assume that there is aphilosophy consistent with that foundation and develop it.

The second assumption to be rejected is that natural lawtheory can only be constructed in a Roman Catholic context,or can only be fully constructed there, because the idea ofnatural law is far more endemic to Catholicism than to anyother religious tradition. Unlike the first assumption, it isassumed here that philosophy can indeed be taken up intotheology as its “handmaiden” (ancilla theologiae).4 But likethe first assumption, it assumes that natural law theory’smatrix lies in classical Greek philosophy. If one sees thatmatrix to be most specifically the political philosophy ofAristotle, then the best appropriation of that philosophy isthought to be in the moral theology of Thomas Aquinas. Mostrecently, that is the position of Alasdair Maclntyre.5

Maclntyre is right if we accept the assumption of naturallaw’s matrix being in Aristotelian teleology. There is little doubtthat no one ever developed Aristotle’s thought better andmore comprehensively than did Thomas Aquinas, andprecisely as a Catholic theologian. But I deny that natural lawtheory must take its beginning from Aristotle. In fact, whenone thinks of the precepts of natural law that both Judaismand Catholicism have affirmed, such as the equal claim tolife of all persons from conception to natural death, or theexclusively heterosexual marital claim on human libido, I findAristotle (and Plato even more so) much more of a hindrancethan a help. His views on both human personhood and humancommunity vary greatly from biblical views. The problem is

much more than just the fact that Aristotle’s teleology doesnot go far enough to include the ultimate humanreconciliation with God taught by Judaism and Christianity.6

There are also real philosophical problems with Aristotelianmoral and political teleology, which seems to presuppose aby now irretrievable teleological natural science.7 When boththe present theological and philosophical inadequacy ofAristotelian teleology is understood, Catholic natural lawtheory has no advantage over Jewish natural law theory. Bothrequire radically renewed work, both theological andphilosophical, in order to counter the charge leveled againstboth of them in our time by Strauss and his disciples. Andboth of them require a much more eclectic use ofphilosophy’s methods and history to be able to presentthemselves as more than merely apologetic rationalizationsfor the commandments of God directly given in revelationand tradition.

Along the lines of this more radical theological andphilosophical investigation of the role natural law theory playsin Jewish thought, I would like to offer ten propositions aboutnatural law along with a brief explication of each of them.8 Inthis way, I hope to avoid Bernard Lonergan’s putdown of thosewho pass ideas from book to book without having them firstgo through a mind.9 Natural law theory in our time requiresvery radical reconstruction from everyone committed to itsreality.

1. Natural law is that which lies at the junction oftheology and philosophy.It has long been a matter of some debate whether naturallaw is a theological doctrine or a philosophical idea. Theologyis a method devised to understand the basic notions ofrevelation, which can be called “doctrines” (torah).Philosophy is a method devised to understand basic notionsabout the world, which can be called “ideas” (eidos). Eachversion of natural law, the theological or the philosophical, isproblematic. Perhaps the best solution possible for theserespective problems is to see natural law lying at the junctionof theology and philosophy rather than in the court of one orthe other exclusively.

If natural law is a theological doctrine, then it seems tobe basically a form of apologetics. For one of the centraldoctrines of Judaism, indeed one so central that it has beenlegally designated a dogma which may not be denied, is thatthe Torah is the revealed law of God.10 Aside from whateverends one might think the various norms of that law intend,the law itself is to be obeyed because God is God. To denythat would be to deny what Maimonides rightly called “thefoundation of all foundations.”11 Furthermore, this law is takento be fully sufficient for every question of human practice andthought.12 That being the case, natural law would seem tobe a rather indirect and partial way of learning what revelationcan teach more directly and completely. Therefore, naturallaw type arguments only seem to be after the fact as it were.At best, they can be taken as useful for deflecting criticism ofthe revealed law of God, coming from those who have beeninfluenced by worldly wisdom, whose epitome is philosophywith its rational persuasiveness.13 Short of banning the studyof this and other forms of worldly wisdom (which has beenunsuccessfully tried from time to time in Jewish history),rhetorical deflection seems to be called for when philosophyrears its critical head.14 According to this line of theology,natural law in essence says too little about which the Torah


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can always say much more. It only offers silver when gold isreadily at hand.15 As one passage in the Talmud puts it, “letour complete (shlemah) Torah not be like your emptyconversation (seehah betelah)!”16

If natural law is a philosophical idea, it seems to be sayingtoo much. In the realm of ethics, the idea of human nature assome sort of universal datum to which our thoughts canreadily correspond has been very difficult to maintain,especially in the face of the growing anthropological evidence,from archaeology diachronically and sociology synchronically,of the vast variety of human political experience and practice.Thus, much of modern philosophy of law has tried to discoverthe necessary procedures of systems of law rather than anyoverarching ontological scheme into which they must fit inorder to be valid per se.17 To do any more than that seems tobe a surreptitious claim of universality for what often turnsout to be some principles a particular human culture happensto have decided to be normatively indispensable.18 Indeed,to then assume ready universality for such a particularnormative outlook can often be exposed as a form of culturalimperialism. That would seem to be the case even in theattempt of some modern Western philosophers to postulate(rather than discover) certain natural rights as the necessaryrequirement of any normative order.19 Furthermore, becausewhen one goes down deep enough in any historical culture,one finds some god or other, many philosophers have alwaysbeen suspicious that natural law is really a theologicalintrusion into philosophy’s realm. That suspicion is buttressedby the fact that many of the great natural law thinkers in historyhappen to have been theologians as well. That is why naturallaw qua law seems to require the assumption of a universaldivine lawgiver. And that is something most philosophers taketo be beyond the realm of rational demonstration.20

If natural law lies at the junction of theology andphilosophy, it must be shown to be able to answer the chargesof theologians who reject it because of its defects andphilosophers who reject it because of its excesses.

What the proponent of natural law should say to itsdetractors among the theologians is that it is required for theintelligibility of the theological claim (certainly in Judaism)that God’s revelation is of immediate normative import. Thatcan only be accepted by the intended recipients of thatrevelation when they already have an idea of why God is tobe obeyed. God is to be obeyed because law is a necessity ofhuman life in community. The most basic human questionsare the practical one: What am I to do?, and the theoreticalone: Why am I to do it? Since human life in community iscreated de novo by God and not by humans themselves, it isGod who rules ab initio for that order. Creation itself is theparadigm for all lawgiving. All other lawgiving is secondary.Minimally, all other law must not contradict the prior law ofGod; maximally, it must enhance it. If humans could notdiscover at least some of that law for themselves beforerevelation, how could they possibly accept the fuller versionof God’s law that comes with historical revelation in thecovenant? This type of normative revelation would bemeaningless if presented to either a lawless mob or acommunity that had convinced itself that its highest law issomething of its own making. That can be seen by the factthat much of the law governing interhuman relationshipsfound in the Torah is law that has been elevated into thecovenant, not introduced by it. Much of that law can only be

discovered by human reason, which is philosophy, ultimatelyif not immediately. Natural law shows that theology cannotdo an end run around philosophy without appearing absurdin the process.21 That absurdity appears in both practice andtheory. Theology need only object to the attempt of somephilosophers to present natural law as the sufficient groundrather than the necessary condition of the founding of thecovenant and the revelation of the Torah that fully governs it.

What the proponent of natural law should say to itsdetractors among the philosophers is that human culturescan only avoid the question of natural law when they identifythemselves alone with humankind per se and regard alloutsiders as devoid of humanity. But to accept anything likethat would ultimately turn philosophy into some sort ofnational ideology. Accordingly, thinkers in every culture haveto speculate about the human nature that enabled theirculture as a normative entity to emerge in history. Withoutan affirmation of that nature as a sine qua non of any cultureworthy of human beings, it would seem to become unworthyof a human choice to live by it. Hence natural law functionsas a philosophical corrective within a culture, holding it tothe conditions that made its very emergence morally possible.And without that affirmation, intercultural relations inevitablybecome some sort of struggle between different nationalideologies for superiority rather than the quest for trulycommon ground. Hence natural law functions as the bridgebetween cultures, enabling none of them to claim it alone assynonymous with authentic humanity. The discovery of thebasic norms of natural law, then, has to be much more thanproposing postulates for any particular system of law andmorals. Being much more than a matter of procedure, itrequires the quest for an ontological foundation that mightbe different from that presented by theology, but which cannotfalsify theology, nonetheless.

In this way, maximally, theology and philosophy canfructify each other; minimally, they can at least stay out ofeach other’s way when considering the question of naturallaw. The difference between the two is that in theology naturallaw is constituted from ontology down to ethics, whereas inphilosophy it is constituted from ethics up to ontology.Maximally, they work best in tandem when their respectivetrajectories cross each other in motion, tarrying awhiletogether, each recognizing the value of the other.22 Thathappens when theology recognizes the ethical value ofphilosophy for its work, and philosophy recognizes theontological value of theology for its work.

2. Natural law is that which makes Jewish moraldiscourse possible in an intercultural world.The interest in natural law throughout Jewish history has beenin proportion to the worldly involvement of Jews at anyparticular time and place. In those times and places whenJews have either not been participants in an interculturalworld, or have not wanted to participate in one, the interestin natural law has been negligible or dormant. The best andmost persistent example of this worldview has been that ofalmost all the kabbalists. For them, any world outside of Israeland the Torah is unreal or demonic.23 The converse of thisworldview has been that type of Jewish theology that has seenaffinities between some doctrines from the classical sourcesof the Jewish tradition and some ideas of Westernphilosophers.


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In the Middle Ages, which could be termed the goldenage of Jewish philosophical theology (roughly, from Saadiahin the ninth century to Abrabanel in the fifteenth century),the worldliness of Jews in a cultural sense was largely anacademic matter. Indeed, it was more a matter of theexchange of thoughts through books than in actual person-to-person discourse. One thinks of Aquinas in thirteenth-century France learning for his constitution of natural law fromthe writing of Maimonides in twelfth-century Egypt, and ofJoseph Albo in fifteenth-century Spain learning for hisconstitution of natural law from the writing of Aquinas inturn.24 When it came to social interaction, however, the vastmajority of Jews lived in their own world.

The three great historical events (or, perhaps, periods)that have determined so much of modern Jewish life have,in effect, catapulted Jews personally into an interculturalworld, which has been much more than one whose primeactivity was the cross referencing of different writings. As such,they have been thrown into a world of real political interaction.Here natural law has had to play an even greater role in Jewishlife than it did when it was more academically confined,although that role has not benefitted nearly enough from thephilosophical insights of the medieval Jewish theologians.These three great events have been the emancipation of WestEuropean Jews from being noncitizens of the larger societiesin which they lived (the key date being the French Revolutionof 1789); the murder of at least half of European Jewry in theHolocaust (the key date being the beginning of the SecondWorld War in 1939); and the establishment of the State ofIsrael in 1948.

With respect to the political emancipation of the Jews,natural law was at the heart of arguments for theenfranchisement of Jews as individuals in modern, secularnation-states. The qualification for citizenship was to be ahuman right dependent on the acceptance of a universallyvalid moral law. The price Jews paid for this rescue frompolitical (and economic) marginality was the loss of the rightsof the semiautonomous Jewish communities, separated byreligion from the majority religion of host societies. Althoughthis was the result of historical processes beyond the powerof the choice of the Jews, most Jews welcomed it anyway. Itwas only a small minority who hoped that modernity and itsemancipation would somehow or other miraculously go awayand the ancien régime would return instead. Since that time,all Jewish claims to be free of any kind of discrimination orpersecution have been made in the language of natural (laterhuman) rights, even when conceptually obtuse. What anatural law perspective does for Jews at this level is to enablethem to make rights claims, but without having to adopt thetype of all-embracing secularism that is antithetical to thecovenantal basis of traditional Jewish life and thought.

Concerning the Holocaust, natural law enables Jews topresent the mass murder of European Jewry by the Nazis andtheir cohorts as a genuine crime against humanity.25 Thissaves the need many Jews feel to remind the world aboutthe agony of the Holocaust and its victims from beingdismissed as an example of special pleading. (That in no waydiminishes the uniquely Jewish aspects of the Holocaust; itsimply sees those aspects being more properly the subject ofspecial discourse among Jews themselves.) Universal moral(as distinct from sensationalistic) interest in the Holocaustshould be because it is probably the worst example to date

of the violation of the basic human right to life. Here again, inorder to have its full moral weight, this right must be seen asmuch more than a mere postulate of some system of law ormorals. It is only a natural law type understanding of themeaning of mass murder that can make it a matter of trulyuniversal concern. Those thinkers who eschew natural lawtype reasoning when discussing the Holocaust are oftentempted by or even succumb to the sort of racist typologythat was employed by the very perpetrators of the Holocaustthemselves.

Finally, when it comes to the establishment anddevelopment of a Jewish polity in the ancestral land as theState of Israel, the most fundamental question of all is justwhat sort of polity it is to be. Heretofore, it has been designatedas both a Jewish and a democratic state. Yet many have seenan inherent paradox in that dual designation. Some religiousthinkers have argued that an authentically Jewish state cannotpossible be the same as a Western-style democracy, andmany Jewish secularists have argued, conversely, that ademocracy cannot be allowed to be hampered by, what intheir eyes is, a necessarily antidemocratic traditional,theocracy (which for them turns out to be a dictatorship ofclerics). Here a natural law perspective can perhaps begin tosolve this paradox and move Israeli political theory forward.For the main point of difference between the two divergentviews of the Jewish polity of the State of Israel is the questionof human rights.

When human rights are merely postulated as being anecessity for a democratic polity, then the whole religiousassumption that all valid law is ultimately God’s law isbracketed, if not actually denied. Conversely, when the ideaof human rights is simply denied because of an assumptionthat it necessarily presupposes a totalizing secularism, thenthe question of what sort of polity a Jewish state is to be inthe present is left unanswered. For beginning with theadoption of the admittedly non-Jewish type of polity ofmonarchy early in the history of ancient Israel, it became clearthat a covenantal community who had accepted the law ofGod for herself could function under almost any type ofregime.26 That is because, unlike so much political theoryboth ancient and modern, in Judaism the authority of the lawdoes not follow from any sort of political sovereignty in theworld. Quite the contrary, the legitimacy of any regime isdetermined by how consistent it is with the law of God.27 Aslong as a regime does not explicitly substitute its own authorityfor that of God and demand total compliance by everyonewithin its power to that usurpation (idolatry), Jews can liveunder it in good faith. No type of polity that Jews have livedunder, either as a community or even as individuals, isessentially Jewish. Essential Jewish polity will only come withthe irrefutable arrival of the Messiah. But until that time, whenJews have the chance to actually choose their own type ofpolity, it would seem that they should choose that optionwhich is most respectful of their prior law rather than thoseless respectful toward it. The classical Jewish sources as wellas the recent experience of the Jewish people in the worldshould be the guides for that political choice.

For Jews, especially in their own state, to reject Western-style democracy, with the recognition of human rights as itshallmark, is to opt for either the communist or fascistalternatives available in the world today. The fact that thosesocieties that have been constituted by either of these two


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ideological options have almost always been antagonistic toboth Jews and Judaism, should be good enough reason forJews to be suspicious of them for themselves and suspiciousof Jewish thinkers who seem to be inclined toward them ineither their thought or their rhetoric. The task for Jewishthinkers, then, is to recover the doctrine of natural law fromwithin the Jewish tradition itself. For here natural law is seenas the law of God; hence, it must eschew the secularism thathas accompanied so much natural or human rights talk sincethe Enlightenment. But by seeing at least the earliest and mostgeneral installment of God’s law as being discoverable byhuman reason, much of what modern natural or human rightstheorists have postulated can be more deeply affirmed byJews.28 And it can be critically affirmed in such a way that itrectifies the excessive individualism that has marred so muchof liberal natural or human rights talk, which has been withoutan adequate ontology and anthropology behind it.

3. Natural law is the practical meaning of the doctrineof creation.The doctrine of creation is not primarily an answer to thequestions: When did the world begin? or How did the worldbegin? It is much more an answer to the question: Why doesthe world exist?29 For whereas the former two questions canbe confined to the level of theory alone, the question of theworld’s purposiveness is one that combines both practice andtheory.30 Since humans are the only creatures of whom weknow who ask theoretical questions in connection with theirpractice, the intelligent question of why the world exists mustbe seen in the light of the human question: Why do we exist?The question is “why do we exist?” rather than “why do Iexist?” because of the essentially communal nature of evenindividual human persons. Hence all sustained humanquestions are political, understanding “politics” in thebroadest and the deepest sense.

The truest political situation of the Jews is that they arein an everlasting covenant with God. The fact that thiscovenant is finally to include all humankind means that thepurpose of human existence is to be in intimate relationshipwith God. “If your presence does go with us, do not take usup out of this place.” (Exodus 33:15) “Every one called by myname, I have created for my glory.” (Isaiah 43:7) And becausethat purposeful existence is communal, there has to be someinterhuman understanding of what authentic human socialitymeans even before the revelation of the covenant and its lawfrom God. In other words, before the revelation of theconcrete realization of the final end of human existence toIsrael, the people have to be living in an authentic, howeverrudimentary, communal way with themselves. That meansthey can discover by themselves penultimate ends in theworld and their concrete realization. They can learn how tolive in true peace with one another and be ready for therevelation of the highest end and its realization when it comes.This involves the discovery of natural law from creation itself,especially from created human existence in community. Thus,natural law contends with what makes authentic humancommunity possible, both immanently and in its transcendentintention. Being law, it does so practically. It hears before itsees. And being intentional action, it calls forth the fullmeasure of human intelligence operating theoretically.Hearing leads to seeing.

4. Natural law is the reasons for revealedcommandments governing interhumanrelationships.Natural law emerges from the Jewish attempt to discover the“reasons of the commandments” (ta ‘amei ha-mitsvot),especially reasons of the commandments in the area ofinteraction between humans themselves (bein adam le-havero). The discovery of these reasons is a specific pursuit.That is, it not only concerns the commandments in generalas coming from God and that to be in relationship with Godis their ultimate end. Rather, it concerns the more immediateends these commandments intend. As such, it is part of thatstrand of the Jewish tradition which sees political philosophyas being useful for the interpretation of the Torah.

It is no accident that those concerned with the reasonsof the commandments, reasons which are universallydiscernible by ordinary ratiocination, have tended to be thosein touch with the philosophers and their ideas. The usualinterpretation of this has been that Jewish thinkers have beenexternally challenged by philosophy and have had to adjusttheir understanding of Judaism accordingly by a synthesis ofsorts.31 This seems to imply, though, that Judaism is reallypurer and more authentic when left in its original isolationfrom the world. Yet, one can see more profoundly that theproblematic the Jewish philosophical theologians haveconcerned themselves with did not come from philosophybut from the Jewish tradition itself, even before it was exposedto philosophy. Exposure to and concern with philosophy havehelped Jewish thinkers, especially in the area of political andethical questions, sharpen and deepen their owndevelopment of the Jewish tradition. But they have done sobecause the world itself lies on Judaism’s own horizon andis not, therefore, a foreign invader to be tamed throughcompromise. The discovery of natural law by means of thisinherent Jewish rationalism enables political philosophy tobecome part of a Jewish search for truth rather than makingthe search for truth and the affirmation of Judaism to be somesort of antinomy.

Finally, an affirmation of natural law can be a coherentguide for making decisions of Jewish law for those in the Stateof Israel who are dedicated to bringing Jewish law to bear onwhat others consider to be purely “secular” matters. Thewhole movement of mishpat ivri (literally, “Hebrewjurisprudence”) is an attempt to do that, but it has beenhindered heretofore by the lack of an adequate philosophicalfoundation.32 Since theological agreement is most improbableat this point in Jewish and Israeli histor y, perhapsphilosophical agreement can be more easily reached. In otherwords, perhaps in the area of political activity, we Jews mighthave to become (figuratively, that is) the mundane humanswe were before being able to accept the covenant at Sinai.33

5. Natural law is the precondition of the covenant.In recent discussions about natural law in Judaism, especiallyamong more tradition-oriented Jewish thinkers, the debatehas been between those who deny there is any Jewishdoctrine of natural law and those who affirm it. But, evenamong those who do affirm it, their affirmation seems to beone that sees natural law only as a supplement to the revealedlaw of Scripture and the traditional law of the Rabbis.34 Itwould seem that they are somewhat fearful of ascribing anymore fundamental role to natural law in Jewish law and


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theology because, in principle even if not in actual practice,that would constitute a surrender of revelation to reason. Andsuch a surrender is what they see to be the theological errorof all liberal Judaisms. In my judgment, these thinkers havebeen seduced by the philosophical power of the constitutionof Judaism by the great neo-Kantian philosopher, HermannCohen (d. 1918), who did just that, very persuasively.35 (Thatis the case with even those who neither understand Cohennor have even read him. They have been seduced by thosewho did understand him, or whose basic point of view wasbetter thought out by Cohen than by themselves.) Cohen didJewish natural law thinking brilliantly, but his way is not theonly way (or even the best one, I think).36

For natural law thinking to develop again among Jewishthinkers, the defective Scylla of fideism and the excessiveCharybdis of modern rationalism will have to be avoided. Thatcan be done best when natural law is seen as the preconditionof the covenant. By “precondition,” I mean something quitesimilar to what Kant meant by the term Bedingung (literally,“what enables a thing to be”).37 That enabling, though, doesnot function as a cause or a ground of what comes to be.What it does is make an opening in the world of ourexperience in order for an entity to appear in it. But becausesuch a precondition is in place does not mean there is anynecessity for that entity to appear. (The confusion of thecondition of revelation with its ground is the error, and whatan exalted error it is, of Hermann Cohen and all the lessermodern Jewish rationalists.38 ) If that appearance is personalas surely God’s appearance reported by Scripture, epitomizedby the theophany at Sinai where God speaks to the wholepeople, then God’s appearance can only be freely given andfreely accepted as an interpersonal event. The careful analysisof the meaning of natural law as this kind of precondition forrevelation and its law, and the location of this precondition atspecific points within Jewish law itself, gives it a heuristicrole richer than its more circumspect proponents can admit,but not as exaggerated as some of its enthusiasts would haveus believe. As the Talmud puts it, “when one grasps too much,one grasps nothing; when one grasps something less (mu‘at), something is indeed grasped.”39 A true preconditionalways accompanies what it has enabled to appear; it cannever be left behind as finished.

6. Natural law is the criterion for human legislationof interhuman relationships.One of the things most of the opponents of natural law inJudaism forget is that the area of Jewish law pertaining tointerhuman relationships, especially Jewish civil and criminallaw, is one where, as the Mishnah puts it, “there is little fromScripture and much more from traditional law (halakhotmerubbot).”40 Now one can see much of the “traditional law”that was developed by the Rabbis and recorded in the Talmudas being based on ancient and inherited traditions, believedto go back to the time Moses was also receiving the parallelWritten Torah from God. However, most of the literaryevidence suggests otherwise. It presents much of this civiland criminal law as the development of human legislationby the Rabbis themselves. This point was best conceptualizedby Maimonides. In his view, aside from those very fewtraditional laws, indisputably designated by the Rabbis as“Mosaic” (halakhah le-Mosheh mi-Sinai), all the rest areclearly devised by human minds.41 But did the Rabbis simplyexercise their legislative authority arbitrarily as some sort of

expression of their own political power? Was not their politicalpower, instead, to be justified by some objective criterion? Inother words, did not the justification of their legal power haveto be by persuasion? And can persuasion be anything butrational?42

What Maimonides showed so well in his interpretation—aided but not inspired by his use of Aristotelian typeteleology—of Jewish civil and criminal law is that it is basedon what the Rabbis discerned as universalizable standardsof justice. Since there is so little in this area specifically fromScripture itself, the reasoning of the Rabbis had to be far moreconceptual than exegetical. Here is where the philosophicalidea of natural law is needed for the coherent developmentof that type of conceptual reasoning in matters of humanexperience and practice that can hardly be taken as singularlyJewish. The two Jewish terms for this type of criterion seemsto be derekh erets (literally, “the way of the earth”) and tiqqunha ‘olam (literally, “the rectification of the world”).43 Theyseem to more or less correspond to the philosophical conceptof the “common good” (bonum commune). When this lineof thinking is followed, one can learn much from the wholephilosophical tradition of seeing natural law as a limit andcorrective of positive law made by humans (lex humana).

7. Natural law is a cultural construct.Perhaps the greatest vulnerability of natural law theory, bothin ancient and modern times, is its seeming oblivion to anddisrespect of cultural diversity, especially in normativematters. Natural law is taken as what is to be universallynormative. But whence does one begin to constitute thisuniverse? Those who take their natural law inspiration fromPlato and Aristotle must also recall that they were speakingGreek to Greeks. It would seem that they mostly followedthe assumption of their culture that non-Greeks, or at leastnon-Greek speakers, are really subhuman “barbarians.”44

Consequently, they were, in effect, attempting toconceptualize what was regarded in their own culture asoptimal human standards, when being “Greek” and being“human” were taken to be identical. (The Greek conquestsof large numbers of barbarians during the time of Alexanderthe Great were an attempt to hellenize their captives bothphysically and culturally.45 ) Moreover, the Roman concept ofthe “law of nations” (ius gentium), without which theirconcept of ius naturale cannot be understood, was originallyan institution of Roman imperialism conceived for the ruleover certain non-Romans living under Rome. And natural lawas most famously conceived by Roman Catholic theorists ispart of the teaching of a church that explicitly attempts toevangelize all humankind. Jews, too, must admit that muchof what could be termed “Jewish universalism” is the hopeof a kind of “judaizing” of the world, as it were.46 All of thisleads to a considerable credibility problem for a “universality”that is not, in effect, a reduction of many particularities toone particularity, which only becomes universal by a processof elimination.47

In addition to this moral problem, there is anepistemological problem. Universal thinking by persons withparticular identities and attachments seems to be animaginative attempt to constitute a world that would be thecase if I were not part of the singular culture in which I nowhave been living concretely. But does this world actuallycorrespond to anything we have really experienced? Anyattempt to locate some universal moral phenomena is so


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vaguely general as to be normatively useless. Such attemptsto transcend cultural particularity remind me of a judgeinstructing a jury to “disregard the statement you have justheard,” when a lawyer or a witness says something that isruled “out of order” in court. Of course, such a judicialpronouncement is effective in preventing the introduction ofsuch a statement from explicitly becoming an official pointof reference during the actual deliberations of the jury. But itcannot be forgotten (and that is usually why it was madeanyway, often with full awareness that a competent judgewill most certainly rule it out of order in the trial). It willinfluence the thinking of the jurors who heard it, like it or not.Our imagination can tentatively abstract us from our owncultures from time to time, but we cannot transcend them bysome nonculturally conceived Archimedean fulcrum in orderto either escape them, destroy them, or recreate them.

Instead of an attempt to find some universalphenomenon to ground natural law, it seems more authenticand more useful to see it as the constitution of a universalhorizon by a thinker in a particular culture for his or her ownculture. Here is where the doctrine of creation comes inbecause it does not allow any member of the covenantedcommunity to ignore the world beyond the community inwhich he or she is situated. It must be taken with utmostseriousness. (The minimization of that political realitycorrelates with a weak or nonexistent theology of creation.48 )As we have seen already, that imaginative project is one wherea person conceives just what sort of a world revelation (thefounding event of the culture) requires in order for the Godwho speaks to present himself in it. The coherence of thatimaginative construction makes it plausible. The“construction” here is of the approach to the reality; it is notthe reality itself that is constructed. It is like making atelescope, assuming there is something “out there” to bediscovered, but which is unlike any object that could be seenby the naked eye. The object to be discovered must bebelieved to exist, even if there is no other way to see it exceptthrough the telescope. (Quantum Theory argues that such“telescopes” themselves are inseparable from the objectsthey telescope. That is a most useful analogue for natural lawtheory.) Only that belief, functioning as a regulative principle,saves this type of natural law thinking from becoming, ineffect, an elaborate and unconvincing rationalization for abody of positive law (human or revealed) that is betterpresented authoritatively than by argument.

8. Natural law requires comparative law and ethics.The coherent plausibility of natural law theory, when it istheoretically good, is complemented by work in comparativelaw and ethics. The fact is that there are commonalitiesbetween the universal normative constructions of a numberof different cultures. That is especially the case when onelooks at Jewish, Christian, Islamic, Greek, and Roman waysof thinking about natural law. These commonalities certainlydo not verify natural law. They are themselves too general todo that, and their abstract speculation can never reach thelevel of the type of transcendental viewpoint Kant attemptedto constitute for universal morality.49 They do not directlycorrespond to a reality readily apprehended. But they do havecorrespondences among themselves, being what John Rawlshas recently called “overlappings.”50

Despite the minimal character of these overlappings, theydo admit of further development, especially in a multicultural

context, where enough people want it to be intercultural aswell. (Without, however, the ideal that it must becomesupercultural, which means one culture swallowing up allthe rest.) And if this represents a desire on the part of personsand communities to discover criteria for living together inmutual justice and peace, then perhaps this type of naturallaw theory will have some sort of correspondence with thelives of the human subjects of natural law. In order for thistype of correspondence to be valid, however, the test of itsuniversality will be the extent it is able to be interculturallyinclusive. Perhaps natural law thinking can save“multiculturalism” from the moral dead end of relativism; andperhaps multiculturalism can save natural law thinking fromits all too frequent myopia.

9. Natural law is Noahide law.Noahide law consists of seven areas of law, such as theprohibitions of murder, theft, and adultery, that the ancientRabbis were convinced that all humans, Jews and gentiles,are held responsible by God to obey.51 To say that natural lawis Noahide law is not to identify natural law with a conceptconstructed within the Jewish tradition. For natural law to be“natural,” namely, inherently universal, it must be recognizedand developed throughout the world. If only Jews hadconceived of it, that fact itself would falsify it. Instead, weshould say that with the concept of Noahide law, Jewishthinkers have an authentically Jewish way to engage inthinking about natural law. And they can offer their thinkingboth inside and outside their own community, although thelatter requires the additional intellectual work of translation.

That Noahide law is the Jewish way of thinking aboutnatural law is, of course, a highly disputed point, in ancient,medieval, and modern Judaism. But it is enough for anyJewish thinker to be able to connect himself or herself with asustained subtradition within the overall tradition itself, evenif that subtradition has a counter subtradition.52 Thinkingwithin the context of a tradition is always an essentiallynormative pursuit, whether it advocates “do this” practicallyor “say this” theoretically. The direct implication, whetherstated or only inferred, is always “don’t do that” or “don’t saythat.” In the case of speech, there is more legal latitude thanin the case of action. The coherence of communal liferequires more conformity in behavior, the visible aspect ofaction, than it does in thought, the invisible aspect of speech.53

Anything normative is always selective, which is the onlyappropriate method (both as modus operandi and as moduscognescendi) for anything finite and temporal and consciousof it like human creatures aware of their own condition. Weare always here and not there, now and not then. Eternity isnot a humanly attainable perspective. All human judgment iswithin history, even when made in relation to God, who cantranscend history.54 That selection is not only between whatis just and unjust, between right and wrong in the practicalsense, it is also a selection between what seems wise andunwise at the moment. The intelligent requirement of Jewishthinkers to think about natural law as Noahide law has enoughtraditional precedent to make it more than idiosyncratic.Moreover, it is a practical requirement for dealing with thenew multicultural political setting most Jews now findthemselves in; and it is a theoretical requirement for thedevelopment of philosophy within Judaism as a time whenthe most pressing philosophical questions seem to be thoseof political thought.


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10. Natural law intends the unique dignity ofhumanness.Natural law thinking seems to be best inspired by a sense ofurgency about assaults on the inherent dignity of humanpersons and human community. In Greek culture, the needfor it is best seen in Antigone’s protest against the tyrannicalabuse of human personhood by Creon’s refusal to allow herdead brother Polynices decent burial.55 In Scripture, the needfor it is best seen in the cry to God from the innocent victimsof the injustice of Sodom and Gomorrah.56 It is a most urgenthuman need when one is confronted by abuses of politicalpower by those who hold it. And those abuses are atemptation both for those who hold secular or religious power.“Those who hold the Torah do not know Me.” (Jeremiah 2:8)It is also a most urgent human need when “every man doeswhat is right in his own eyes” (Deuteronomy 12:8). In otherwords, we need it when human persons are abused bycommunities, and we need it when persons abuse humancommunity. Natural law seems to be the best corrective forboth the excesses of collectivism and the defects ofindividualism. It comes from the search for ourselves as thereflection of someone greater than that we can makeourselves or be made by anything in our world. It is truly aperennial need. By whatever name it happens to be called atany one time, like anything else that is natural it cannot bepermanently repressed.

Natural law, then, is the necessary and perpetual critiqueneeded by all culture and all positive law, even by that culturewhose adherents are still conscious of its origin in revelation.Natural law is the essential limit on the pretensions of humanaction for the sake of human existence and its transcendentintention. It operates best when its rightful role is understood,when neither too much nor too little is expected of it.Whatever it has been called at various points in Jewish history,it has been functioning from the beginning of Judaism. Butwhen natural law has been ignored, Judaism has oftenbecome distorted in the process, either by understating oroverstating its own worldly dimension.

* David Novak holds the J. Richard and Dorothy Shiff Chair of JewishStudies at the University of Toronto. This article first appeared inThe American Journal of Jurisprudence, Vol. 43, 1998.

Endnotes1. Natural Right and History (Chicago: University of Chicago Press,1953), 81. Strauss uses “natural right” in the sense of the GermanNaturrecht, viz., a normative order (e.g., Rechtsordnung) as distinctfrom any actually promulgated norm. “Right” for him is thus ius ratherthan nomos or lex or Gesetz, i.e., it is ius naturale rather than lexnaturalis. Most fundamentally, it is diké in the classical Greek sense(see, e.g., Sophocles, Antigone, 365; also, Aristotle, NicomacheanEthics, 1 134b30). There is little doubt that Strauss was trying to avoidthe theological notion of natural law as universal law promulgatedby God (see Natural Right and History, 7; cf. Thomas Aquinas, SummaTheologiae, 1/2, q. 90, a. 4 ad 1, and q. 94, a. 4 ad 1). And even moreso, he was distinguishing “classical” natural right from the minimal“natural rights” proposed by such modern social contract thinkersas Hobbes and Locke (see Natural Right and History, 165-202). Fora critique of Strauss’s assertion as it pertains to Judaism specifically,see David Novak, Jewish Social Ethics (New York: Oxford UniversityPress, 1992), 29-33.2. Thus the first heresy rejected by the Church was that of Marcion,who advocated a total break with the God of Israel and the Torah ofIsrael. See Henry Chadwick, The Early Church (New York: VikingPenguin Books, 1967), 38-41.

3 See David Novak, Jewish-Christian Dialogue (New York: OxfordUniversity Press, 1989), 64-67.4. For the origin of this term and concept, see Harry A. Wolfson, Philo1 (Cambridge, Mass.: Harvard University Press, 1947), 145-146.5. See his Whose Justice? Which Rationality? (Notre Dame, Ind.:University of Notre Dame Press, 1988), 164-182.6. Cf. ibid., 192-193.7. See Strauss, Natural Right and History, 8. Cf. Strauss, What isPolitical Philosophy? (Glencoe, Ill.: Free Press, 1959), 39, and JohnFinnis, Natural Law and Natural Rights (Oxford: Clarendon Press,1980), 52. My critique of both Strauss’s and Finnis’s attemptedsolutions to this problem appears in Covenantal Rights (Princeton:Princeton University Press, 2000).8. The remainder of this article is adapted from the conclusion of mybook, Natural Law in Judaism (Cambridge: Cambridge UniversityPress, 1998).9. This is a slight paraphrase of what Lonergan actually said asreported by his student Frederick G. Lawrence in “Leo Strauss andthe Fourth Wave of Modernity,” Leo Strauss and Judaism, ed. DavidNovak (Lanham, Md.: Rowman and Littlefield, 1996), 134.10. Mishnah: Sanhedrin 10.1; Maimonides, Commentary on theMishnah thereon, principle no. 8.11. Mishneh Torah: Yesodei ha-Torah, 1.1.12. See Mishnah: Avot 5.22; Palestinian Talmud: Peah l.l/15b re Deut.32:47.13. See Mishnah: Avot 2.14. This type of theology became known inthe Middle Ages as kalam. Note Maimonides’ characterization of itin Guide of the Perplexed, 1.71 (trans. Shlomo Pines, Chicago:University of Chicago Press, 1963, 177): “. . . the science of kalam[is] to establish premises that would be useful to them in regard totheir belief and to refute those opinions that ruined the foundationsof their law.” Here he is speaking of kalam as it developed in Islam.But he also recognizes that there are versions of it in both Judaismand Christianity. Cf. Commentary on the Mishnah: Avot, introduction,beg.14. See Fritz I. Baer, A History of the Jews in Christian Spain 1, trans.Lawrence Schoffman (Philadelphia: Jewish Publication Society,1978), 236-242. Cf. Samuel D. Luzzatto, Commentary on the Torah:Deut. 6:5, ed. Pinhas Schlesinger (Tel Aviv: Dvir, 1965), 516-519; also,Bernard Lonergan, Method in Theology (New York: Herder andHerder, 1972), 24-25.15. See Babylonian Talmud: Berakhot 33b.16. Babylonian Talmud: Menahot 65b.17. See, e.g., Lon L. Fuller, The Morality of Law, rev. ed. (New Havenand London: Yale University Press), 96-97; also, Ronald Dworkin,Taking Rights Seriously (Cambridge, Mass: Harvard University Press,1978), 160-163.18. See Maclntyre, Whose Justice? Which Rationality?, chap. 1.19. See, e.g., Johns Rawls, A Theory of Justice (Cambridge, Mass.:The Belknap Press of Harvard University Press, 1971), 11-17.20. See, esp., Kant, Critique of Pure Reason, B847; Critique of PracticalReason, 1.2.2.5. Cf. Yves Simon, The Tradition of Natural Law, ed.Vukan Kuic (New York: Fordham University Press, 1992), 62-65.21. See John Courtney Murray, We Hold These Truths (New York:Sheed and Ward, 1960), 298; also, most recently Pope John Paul II,Fides et Ratio (1998), esp. chap. 6.22. See Leo Strauss, “The Mutual Influence of Theology andPhilosophy,” Independent Journal of Philosophy 3 (1979), 111-118.23. See David Novak, The Election of Israel (Cambridge: CambridgeUniversity Press, 1995), 16-18.24. See Thomas Aquinas, Summa Contra Gentiles, 1.4, trans. AntonPegis (Garden City, N.Y.: Image Books, 1955), p. 68, n. 2; Joseph Albo,Sefer ha’Ikkarim 1, trans. Isaac Husik (Philadelphia: JewishPublication Society, 1929), 179, n. 1.25. See Hannah Arendt, Eichmann in Jerusalem, rev. ed. (New York:Penguin Books, 1965), 277-298.26. For a discussion of various Jewish political options, both ancientand modern, see David Polish, Give Us a King (Hoboken, N.J.: KTAV,1989).


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27. This point has been recently presented with great power by theAnglican theologian Oliver O’Donovan in The Desire of the Nations(Cambridge: Cambridge University Press, 1996), 65-73, 233-242.28. In the scholarly debate over whether modern notions of naturalrights are consistent or inconsistent with earlier natural law notions,I agree with the former view. Along these lines, see Brian Tierney,The Idea of Natural Rights (Atlanta, Ga.: Scholars Press, 1997), 343and passim.29. See Maimonides, Guide of the Perplexed, 2.19.30. See Babylonian Talmud: Pesahim 54a quoting Prov. 8:22. Cf.Beresheet Rabbah 1.1.31. See, e.g., Isaac Husik, A History of Medieval Jewish Philosophy(Philadelphia: Jewish Publication Society, 1940), xix.32. See David Novak, “A Critical Review-Essay of Menachem Elon’sJewish Law” [4 vols., trans. Bernard Auerbach and Melvin 1. Sykes(Philadelphia and Jerusalem: Jewish Publication Society, 1994)], VeraLex 14 (1994) 51-54. EIon’s magisterial work is totally inspired by themishpat ivri project.33. See David Novak, The Image of the Non-Jew in Judaism (NewYork and Toronto: Edwin Mellen Press, 1983), 66-73.34. See, e.g., J. David Bleich, “Judaism and Natural Law ,“ JewishLaw Annual 7(1988) 5-42. For a traditionalist view that seems toascribe more centrality to natural law in Judaism, however, seeAharon Lichtenstein, “Does Jewish Tradition Recognize an EthicIndependent of Halakha?,” Modern Jewish Ethics, ed. Marvin Fox(Columbus, Ohio: Ohio State University Press, 1975), 62-88. For themost famous traditionalist rejection of natural law in recent years,see Marvin Fox, Interpreting Maimonides (Chicago: University ofChicago Press, 1990), 124-151. For a critique of Fox, see Novak, JewishSocial Ethics, 24-29.35. See his Religion of Reason Out of the Sources of Judaism, trans.Simon Kaplan (New York: Frederick Ungar, 1972), esp. 113-143.36. Jewish thinkers were not the only ones who seem to have thoughtthat natural law theory could only be done Cohen’s neo-Kantian wayor not at all. Thus Karl Barth, who himself had been Cohen’s studentat the University of Marburg, seems to have been so seduced also.See Church Dogmatics 2/2, trans. G. W. Bromiley et al. (Edinburgh: T.and T. Clark, 1957), 514.37. .See Kant, Critique of Pure Reason, B72; also, Novak, Jewish-Christian Dialogue 136-141.38. See Novak, The Election of Israel, 72-77.39. Babylonian Talmud: Rosh Hashanah 4b and parallels.40. Mishnah: Hagigah 1.8.41. See Mishneh Torah: Mamrim, chaps. 1-2.42. See Babylonian Talmud: Gittin 14a and Avodah Zarah 35a.43. Re derekh erets, see Vayiqra Rabbah 3.9 re Gen. 3:24. Re tiqqunha‘olam, see Mishnah: Gittin 4.5 re Isa. 45:18.44. See Aristotle, Politics, 1252b5-15; also, Plato, Republic, 469B-C.45. See I Maccabees, chap. 146. See Novak, Jewish-Christian Dialogue, 57-67.47. See Hegel, Lectures on the Philosophy of Religion, trans. R. F.Brown et al. (Berkeley, Calif.: University of California Press, 1988),202, 371-374.48. See Novak, The Election of Israel, 16-18.49. Cf. Kant, Critique of Practical Reason, preface.50. See Rawls, Political Liberalism (New York: Columbia UniversityPress, 1993), 133-172.51. See Novak, The Image of the Non-Jew in Judaism, passim.52. See Tosefta: Yevamot 1.12.53. See Babylonian Talmud: Kiddushin 40a re Ps. 66:18 and ibid.,49b and parallels.54. See Novak, The Election of Israel, 200-207, 262-263.55. See Sophocles, Antigone, 20-38.56. See Gen. 18:20.a

RECENT LAW REVIEW

ARTICLES OF INTEREST

—ABSTRACTS—

Kamm, F. M. “Cloning and Harm toOffspring,” 4 New York University School ofLaw Journal of Legislation and Public Policy65-75 (2000/01).

Kamm examines a variety of arguments in support of cloningand others against it. Her most valuable philosophicalcontribution is conceptual clarification of recent discussionsof cloning. The first concerns the value of a person. Sheargues that this value is not affected by the way in which aperson comes into existence. Nor would the existence ofsomeone identical in every way (except for numericalidentity) lessen the value of either person or mean that onewas replaceable by the other. We value our survival, sheargues, because of our numerical identity; the knowledge thatanother being with the same genotype and phenotype existswould provide no consolation if we were killed. Thus, sheconcludes, arguments centering on differences in phenotypeare misplaced.

The second clarification concerns personal identity, andshe offers support for worries that cloning poses a threat toour sense of human identity. Although the clones would notshare all of one’s essential properties, they still mightconstitute possibilities in life that one had not taken oneselfbut could have, and this, she suggests, is understandably ofconcern.

Kamm also considers practical issues in ethics. Parentswho want to clone a second child like a first should perhapsbe required to have the consent of the first offspring, andissues of responsibility for the second child need to be sortedout. She next presents arguments to support the view that acloned child might have been wronged by being brought intoexistence, even assuming it will have a life worth living. Finallyshe supports the argument that a desire to have a closergenetic connection to a child would justify cloning over sexualreproduction.

Modak-Truran, Mark C. “A PragmaticJustification of the Judicial Hunch,” 35University of Richmond Law Review 55-89 (2001).

Modak-Truran defends Judge Joseph Hutcheson’s hunchtheory of judicial decision-making as an underappreciatedpragmatic and empirical solution to current issues, especiallythe now widely recognized indeterminacy of the law and theexplosion of fact that judges must consider. Althoughproposed seventy years ago during what is now called thelegal realist movement, Hutcheson confronted the sameuncertainty in the law that judges do today in the aftermathof discredited strong legal formalism.


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Modak-Truran defends Hutcheson against criticism thatthe use of such notions as “hunch” and “intuition” denigratethe judicial process. He argues that James’s pragmatismprovides the epistemological framework for resuscitating“hunches” from arbitrariness. He also argues that Hutchesonis more properly characterized as a pragmatist than a legalrealist.

Sunstein, Cass R. “Deliberative Trouble?Why Groups Go To Extremes,” 110 Yale LawJournal 71-119 (2000).

There is a very attractive political ideal that places greatemphasis on group deliberation, on the idea that collectivereflection and exchange of views yield superior decisions.This has been observed by Aristotle (“…each has his shareof… practical wisdom… Some appreciate one part, someanother, and all together appreciate all.”), Hamilton(“differences of opinion…often promote deliberation, andserve to check the excess of majority.”), and Rawls (“Ineveryday life the exchange of opinion with others checks ourpartiality… Discussion is a way of combining information andenlarging the range of arguments.”). But as so far stated, theobservations are empirically naïve, for whether deliberationyields good outcomes depends on who is doing thedeliberating.

There is a phenomenon, observed both in controlled andreal-world settings, called “group polarization,” which meansthat “members of a deliberating group predictably movetoward a more extreme point in the direction indicated bythe members’ predeliberation tendencies.” For example, ifa group favorable to affirmative action, or suspicious offeminism, meets to discuss their issue and perhaps planaction, they are likely to emerge more committed toaffirmative action, or more conservative on gender issues,then they were individually prior to group deliberation. Andjuries, after deliberation, are likely to make larger awards thanmost or even all were inclined to make prior to deliberation.Given this, what case is there that group deliberation isbeneficial?

Group polarization is explained in part by socialinfluences—people’s desires to be perceived favorably byothers in the group and to perceive themselves favorably. Itis also explained in part by the size of the “argument pool”—the extent of the information and arguments that are putforward. Inevitably the impact of these factors (and othersdiscussed in the article) is heightened when deliberationtakes place in enclaves of like-minded people. “[P]olarizationwill likely occur among heterogeneous as well ashomogeneous groups, so long as there is a determinate initialpredisposition among members…” The phenomenon isexacerbated when group members identify themselves bycontrast to some other group.

Sunstein observes that polarization occurs in certain legalinstitutions. Juries have already been mentioned, and thereis evidence that it occurs on multimember courts all of whosemembers are from the same political party. On the otherhand, the design of certain institutions actually militatesagainst polarization—the requirement of bipartisanmembership on independent regulatory commissions, andthe bicameral legislature.

Polarization is not altogether bad, however; there can bevalue in certain groups isolating themselves from competingviews, as in the development of the antislavery movement.Low-status groups, for example, are often quiet and ignoredin larger, heterogeneous deliberating bodies; separatingthemselves provides opportunities for their arguments todevelop and gain attention—at the cost, though, of increasingthe dangers of extremism and instability. From the standpointof institutional design, then (one case Sunstein is concernedabout is the use of the internet), the goal should be “to createspaces for enclave deliberation without insulating enclavemembers from those with opposing views, and withoutinsulating those outside of the enclave from the views of thosewithin it.”

Nelson, Caleb. “Stare Decisis andDemonstrably Erroneous Precedents,”87 Virginia Law Review 1-84 (2001).

How should judges deal with precedents that are mistaken—or at least believed to be mistaken? The prevailing view isthat such cases cannot be overruled simply because they are(thought to be) wrong, for to overrule on this ground is to failto give them weight as precedent and thereby to do damageto the rule of law. Overruling is thought to be proper onlywhen such precedents have proved to be unworkable, havebeen left behind by “the growth of judicial doctrine or furtheraction taken by Congress,” or are problematic in some otherway. This is the ‘strong’ view of stare decisis, but there is a‘weaker’ version which does not include the presumptionthat incorrect precedents must be followed absent specialcircumstances.

When a judge thinks a prior decision was mistaken, shemight mean one of two things. She might mean that there isa range of permissible and defensible decisions that couldhave been reached even if none is absolutely required giventhe ambiguity of statutory (or constitutional) language, andthat she would have chosen one of the alternatives if she haddecided the case in the first instance. Or she might meaninstead that the actual decision in the case was not evenwithin the range of discretionary choice and thus was‘demonstrably erroneous.’ In such cases, Nelson believes, acoherent doctrine of stare decisis need not presume thatprecedent must be followed unless there are special reasonsagainst it. To the contrary, the presumption instead might bethat the precedent is not to be followed unless there arepositive reasons (for example, reliance) to do so.

Nelson argues for both the descriptive power and thenormative desirability of the weaker version of stare decisis.The descriptive claim is that the weaker version accuratelyreflects the role of stare decisis in, for example, JamesMadison’s conception of the role of judges—when, forexample, he distinguishes between the question of “whetherprecedents could expound a Constitution” and the questionof “whether precedents could alter a Constitution.” Similarly,the weaker version is evident in antebellum case law, in whichjudges regularly indicate that while precedents are usually tobe followed even if the judge would have decided otherwise,in some cases they are to be overruled simply because theyare wrong. Here is a Connecticut judge in 1810: “I shouldconsider myself bound by [the court’s past interpretation];


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but as the statute, in my judgment, is perfectly plain, I amconstrained to say that its obligations are paramount to anyprecedent, however respectable.” Nelson maintains that thesame approach is detectable in common law as opposed tostatutory cases, though the issue is complicated by the factthat conceptions of the common law have altered over time.Whereas we now tend to see common law judges as makingdecisions on the basis of policy considerations, the earlierview was that part of the common law had external sourcessuch as custom and reason. On the latter view of the commonlaw there was room to make the distinction betweendecisions within a range of permissibility, given the externalsources of the common law, and decisions beyondpermissible constraints.

Why might the weaker version be preferred? Do itsbenefits outweigh its costs? The main benefit claimed forthe view is that it reduces the number of erroneousprecedents. Is this realistic? Are there many demonstrablyerroneous precedents? And if earlier judges madedemonstrably erroneous judgments, are later judges morelikely to avoid this pitfall? Nelson contends that some casesof first impression are likely to have been decided incorrectlyowing in part to limited acquaintance with the topic and thearguments, and that over time the accretion of lawyers andjudges thinking about the issues are likely to produceimproved thinking about them. On the other hand, the weakerversion has costs: more decisions will be overruled than onthe strong version of stare decisis, generating “transitioncosts,” the costs of seeking refinement of the new rule andadapting to it. Nelson argues for the conclusion that “If onebelieves that most legal questions have a relatively narrowset of permissible answers, that courts will not always reachthese answers, but that the existence of written opinions (andsubsequent commentary and briefing about those opinions)tends to expose bad arguments and to perpetuate good ones,then one might rationally surmise that the weaker version ofstare decisis will increase the accuracy of our case lawenough to justify the costs of the extra changes it generates.”

As Nelson points out, the case for the weaker version ofstare decisis rests on recognizing a distinction between lawand judicial decision—that is, between the underlying basisof a judicial decision, and the decision that presumably restson those underlying factors. Given the distinction it is possibleto say that a judicial decision is beyond the range ofpermissibility and thus unacceptable, which is to say,demonstrably erroneous. Nelson observes that thisdistinction, though not universally accepted by legal theorists,“does have some continuing relevance on today’s SupremeCourt. Of the Court’s current members, Justices Scalia andThomas seem to have the most faith in the determinacy ofthe legal texts that come before the Court. It should come asno surprise that they also seem the most willing to overrulethe Court’s past decisions.”

Finnis, John. “Propter Honoris Respectum:On the Incoherence of Legal Positivism,”75 Notre Dame Law Review 1597-1611 (2000).

“The disputes between exclusive and inclusive legalpositivists are…a fruitless demarcation dispute, little morethan a squabble about the words ‘law’ or ‘legal system.’” “Notruth about law…is systematically at stake in contemporarydisputes between exclusive and inclusive legal positivists.”“Positivism is in the last analysis redundant.” Why? Because,as the author sees it, it does not matter whether, with theexclusivists, we sever the question of what the law is fromwhat the moral obligation of officials, including judges, is; orinstead, with the inclusivists, treat as law whatever it is theobligation of officials to do.

The ultimate question, which no form of positivism cananswer, is how law becomes obligatory. It cannot becomeobligatory by any method of positing—by being commanded,by custom, or by being created in accordance with the sociallyrecognized means for creating law—for this leavesunanswered the question of how any of these createsobligations. The only legitimate answer to the question isthat law becomes obligatory by being the fulfillment of ourmoral obligations, the source of which is not commands, evendivine ones, but “true and intrinsic values,” “basic humangoods.”

The slogan “there is no necessary connection betweenlaw and morality,” often taken to define positivism, isthreadbare, for, properly understood, it has always beenaffirmed by natural law theory. Natural law theory holds thata really bad law has no relevance to anyone’s moralresponsibility, including a judge’s. Thus there is no connectionbetween law and morality, for the only thing that could makesuch a law obligatory—namely, morality—does not. (Ofcourse, this “really bad law” would still be a law, for whateverthat is worth.)

Law is, in fact, a way of creating moral obligations. Thecommon good calls for schemes of social coordination; thepolitical system chooses among good but incompatible (non-compossible) schemes. Once selected, and because thescheme is for the common good, everyone is morallyobligated to comply and judges to enforce. In this way a speedlaw, for example, which was not previously obligatory,becomes so. Its obligatoriness is largely independent of itscontent, though a sufficient degree of injustice in a law willdefeat its bindingness.

Bell, Abraham and Parchomovsky, Gideon.“Takings Reassessed,” 87 Virginia Law Review277-318 (2001).

Under the Fifth Amendment those whose property is takenby government for public purposes are entitled tocompensation, but when property that is regulated under thepolice power loses value, no compensation is due. Thereare cases, however, which hold that compensation will beowed when the regulation strips property of virtually all itsvalue; these are called ‘regulatory takings.’ There is, however,yet another problem with respect to takings that has not beenaddressed. When property is taken, even in the moststraightforward case, for a public purpose, only the property


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owner has a claim for compensation, even though adjacentowners may also experience losses. It has been judiciallyestablished that losses related to these ‘derivative takings’are not compensable. This, the authors say, is neither fairnor efficient; it is inefficient because it permits the public toimpose on others some of the costs of what it wants to achieve(which in the case of owners is exactly what the eminentdomain provision is designed to prevent). “It is senselessand unjustifiable that a diminution of one dollar due to aphysical taking is compensable per se, while a diminution of$100,000 resulting from a derivative or regulatory taking canbe effected with impunity. The source of the harm and theharm’s effect on property owners are the same, irrespectiveof classification.”

Assuming there is a case, based on fairness or efficiency,for compensation, the process of determining the level ofcompensation must itself be efficient; many commentatorssuspect that is the difficulty of administration that has led torulings that derivative takings are not compensable. Theauthors argue that the problem of administrability can beovercome by self-assessment mechanisms—placing theburden of evaluating and reporting benefits and harms onthe individual experiencing them. Those who believe theyhave been harmed by a taking file a report making claims asto the nature and magnitude of harm, for which thegovernment compensates them. A system of audits and steeppenalties for over-stating losses, the authors argue, will serveas a deterrent and cost far less than administrative or judicialdetermination of losses. And it is also superior to an insuranceapproach. The authors argue that the self-assessmentmechanism can be used for physical and regulatory takingsalso.

RECENT PROGRAMS SPONSORED

BY THE APA COMMITTEE ON

PHILOSOPHY AND LAW

APA Eastern Division, New York City, December 29,2000

Topic: Gun ControlChair: Lester H. Hunt (University of Wisconsin,

Madison)Speaker: Hugh LaFollette (East Tennessee State

University), “A Case for Gun Control”Speaker: Samuel C. Wheeler (University of

Connecticut, Storrs), “A Case AgainstGun Control”

Commentators: Cynthia Stark (University of Utah),Lance K. Stell (Davidson, CarolinaMedical Center)

APA Pacific Division, San Francisco, March 31, 2001Symposium: Berger Prize—“Games Lawyers Play:

Legal Discovery and Social Epistemology,”by William J. Talbott and Alvin Goldman

Chair: Stefan B. Baumrin (CUNY GraduateSchool/Lehman College)

Speakers: Joan McGregor (Arizona State University)William Simon (Stanford University LawSchool)

Respondents : (Winners of the Berger Prize)William J. Talbott (University ofWashington)Alvin Goldman (University of Arizona)

APA Central Division, Minneapolis, May 4, 2001Topic: The International Criminal Court and the

Prospect of Transnational JusticeChair: David Crocker (University of Maryland at

College Park)Speaker: Pablo De Greiff (SUNY Buffalo)Speaker: Angela Means (Dartmouth College)Commentator: David Crocker (University of Maryland at

College Park)

APA Eastern Division, Atlanta, December 28, 2001Topic: The Death PenaltyChair: William Edmundson (Georgia State

University)Speaker: Hugo Bedau (Tufts University)Commentator: Maimon Schwarzchild (University of San

Diego)Speaker: Claire Finkelstein (University of

Pennsylvania)Commentator: Michael Davis (Illinois Institute of

Technology)Speaker: Tom Sorell (University of Essex)Commentator: Seanna Shiffrin (UCLA)


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RECENT BOOKS OF INTEREST

Alschuler, Albert W. Law Without Values: The Life, Work, andLegacy of Justice Holmes. University of Chicago Press, 2000.

Arend, Anthony Clark Legal Rules and International Society.Oxford University Press, 1999.

Bernstein, David E. Only One Place of Redress: AfricanAmericans, Labor Regulations, and the Courts fromReconstruction to the New Deal. Duke University Press, 2001.

Best, Joel Random Violence: How We Think about NewCrimes and New Victims. University of California Press, 1999.

Bosmajian, Haig The Freedom Not To Speak. New YorkUniversity Press, 1999.

Burgess-Jackson, Keith (ed.) A Most Detestable Crime: NewPhilosophical Essays on Rape. Oxford University Press, 1999.

Dionne, E.J. and Kristol, William Bush v. Gore: The CourtCases and the Commentary. Brookings Institution Press, 2001.

Donahue, Debra The Western Range Revisited: RemovingLivestock from Public Lands to Conserve Native Biodiversity.University of Oklahoma Press, 1999.

Dowd, Nancy E. Redefining Fatherhood. New York UniversityPress, 2000.

Farber, Daniel A. Making Sensible Environmental Decisionsin an Uncertain World. University of Chicago Press, 1999.

Feldman, Stephen M. (ed.) Law & Religion: A CriticalAnthology. New York University Press, 2000.

Honoré, Tony Responsibility and Fault. Hart Publishing, 1999.

Kahn, Victoria and Hutson, Lorna Rhetoric and Law in EarlyModern Europe. Yale University Press, 2001.

Keyssar, Alexander The Right to Vote: The Contested Historyof Democracy in the United States. Basic Books, 2000.

Lawrence, Frederick M. Punishing Hate: Bias Crimes UnderAmerican Law. Harvard University Press, 1999.

Lynch, Joseph M. Negotiating the Constitution: The EarliestDebates Over Original Intent. Cornell University Press, 1999.

Nelson, William E. The Legalist Reformation: Law, Politics,and Ideology in New York, 1920-1980. University of NorthCarolina Press, 2001.

Patterson, James T. Brown v. Board of Education: A Civil RightsMilestone and its Troubled Legacy. Oxford University Press,2001.

Pizzi, William Trials Without Truth. New York University Press,1999.

Purcell, Jr., Edward A. Brandeis and the ProgressiveConstitution: Erie, the Judicial Power, and the Politics of theFederal Courts in Twentieth-Century America. Yale UniversityPress, 2000.

Sarat, Austin When the State Kills: Capital Punishment andthe American Condition. Princeton University Press, 2001.

Schneider, Elizabeth M. Battered Women & FeministLawmaking. Yale University Press, 2000.

Singer, Joseph W. Entitlement: The Paradoxes of Property.Yale University Press, 2000.

Sunstein, Cass Republic.Com. Princeton University Press,2001.

Wise, Steven M. Rattling the Cage: Toward Legal Rights forAnimals. Perseus Books, 2000.

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